MB Civic

Senator James Inhofe, a conservative Republican from Oklahoma, and Senator Lincoln Chaffee, a liberal Republican from Rhode Island, are at opposite ends of the earth on environmental issues. But both found themselves equally mystified by the recent Supreme Court decision on the Clean Water Act. The decision did nothing to clarify which waters were protected under the act and which were not.

Both agreed that only Congress can end the confusion. Both are right. Without Congressional intervention, the certain outcome is endless litigation and a steady decline of the nation’s streams and wetlands.

The court issued what amounted to three opinions. Four conservatives led by Justice Antonin Scalia said the law protected only “permanent, standing or continuously flowing” water bodies, a judgment that would have exposed most wetlands and all seasonal streams — nearly 60 percent of the country’s waters, by the government’s own estimates — to dredging, dumping and development.

A liberal four-justice bloc argued the opposite, that the act protected all the nation’s waters — a view that has been endorsed by every regulatory authority except President Bush’s Environmental Protection Agency since the act’s inception in 1972. The crucial ninth vote was cast by Justice Anthony Kennedy, who said in effect that each case should be judged on whether the water body in question had a “significant nexus” with a navigable waterway.

That saved the country from the blanket destruction of Justice Scalia’s reasoning. But it, too, had no solid basis in the act itself and, worse, threatened to open matters up to continuous dispute.

There is a bill in Congress that would quickly resolve the issue. It is called the Clean Water Authority Restoration Act, and its purpose is to remove any ambiguities in the original law and to reassert, in clear terms, the act’s intention to protect all the waters of the United States, large and small, permanent or seasonal, navigable or isolated.

This would also clarify things for the E.P.A. and the Army Corps of Engineers, the regulatory agencies charged with carrying out the law. With the law’s scope in doubt, neither agency has known quite how to proceed — some developers received permits to dredge and fill wetlands and small streams, some did not. Congress can make sure that from now on the law is squarely on the side of clean water.