Mark Squillace
Writers on the Range

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June 26, 2014
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Writers on the Range: Let’s protect all our nation’s water

The Environmental Protection Agency recently proposed a new rule to define the term “the waters of the United States” as used in the federal Clean Water Act. If you care about protecting our nation’s waters and wetlands, and if you care about government efficiency, then you should support this rule. Here’s why.

For largely historical reasons, when Congress passed the Clean Water Act in 1972, it used the phrase “navigable waters” to describe the scope of the law, defining that term to mean “the waters of the United States.” One can easily read this definition expansively, and indeed, the congressional report that accompanied the law expressed Congress’ desire that the phrase “be given the broadest possible constitutional interpretation.”

The agencies primarily responsible for carrying out the Clean Water Act — the EPA and the U.S. Army Corps of Engineers — initially settled on a narrow definition, but after a court rebuffed that approach, they adopted a much broader definition that included even natural ponds used by migratory birds. Clear legal support for this expanded rule is found in the U.S. Constitution’s Commerce and Treaty clauses.

The U.S. Supreme Court has entertained questions about the scope of the Clean Water Act on three separate occasions. The first was in 1985, when a unanimous Court embraced a broad reading of the law.

Sixteen years later, however, the makeup of the Court had changed, and in a narrow 5-4 decision it held that law did not encompass isolated ponds used by migratory birds. The justices reached this result in the face of evidence that Americans spend more than a billion dollars annually on commercial activities relating to migratory birds. Perhaps the most striking thing about this decision was the majority’s insistence on giving controlling weight to the phrase “navigable waters,” when Congress had already defined the term as “the waters of the United States.” And to meet the Court’s “navigable waters” test, the government had to show a significant connection to traditional navigable waters — those deep or wide enough to support trade or travel.

The majority insisted that this narrow reading was necessary because the government’s claims raised “significant constitutional questions.” Yet the Court never bothered to analyze those questions. Had it done so, it seems unlikely that it would have found a problem. Another five years passed before a badly split Court doubled down on its narrow interpretation of the law. The case involved a rogue developer who had blatantly disregarded state and federal requests to obtain permits before filling in certain wetlands that were immediately adjacent to tributaries of navigable waterways.

These decisions have fostered considerable doubt about when and where the law applies. This uncertainty encourages agencies already reeling from severe budget cuts to limit claims of jurisdiction to avoid the case-by-case determinations that invite administrative and judicial challenges. The bureaucratic chaos that this creates is not only costly but also harms our waters by allowing polluting activities to take place without government oversight or regulation.

Here’s the thing. Polls show that most Americans care deeply about protecting all of our nation’s waters, whether or not they connect to navigable bodies of water. Most also believe that people or companies that dump pollutants or otherwise foul our waters should be regulated. Unfortunately, the Supreme Court’s unnecessarily crabbed reading of the Clean Water Act stands in the way of such regulation.

An obvious solution is to amend the Clean Water Act to clarify what Congress originally intended. Congress came close to doing that only a few years ago. But the current gridlock in Washington virtually assures no progress on the legislative front.

The best alternative is to invoke the government’s rulemaking powers to minimize the uncertainty and protect as much water as we can. That is what this rulemaking is all about. It is a modest proposal, but one that will end the now-cumbersome case-by-case assessments for all non-navigable tributaries of navigable waterways as well as their adjacent wetlands. This covers the vast majority of our nation’s waters. For other waters that fail this test, decisions can still be made on a case-by-case basis.

Chief Justice John Roberts, who sided with the majority in the two most recent cases, has lamented that federal rules might have avoided the current state of affairs. He suggests that rules would provide “guidance meriting deference under our generous standards.” If he truly believes this, he could provide the decisive vote to support a more expansive reading of the law.

Let’s test this theory by getting behind this proposed rule. Comments are due by Oct. 20, 2014.

Mark Squillace is a contributor to Writers on the Range, a syndicated opinion column service of High Country News (hcn.org). He is a professor of law at the University of Colorado Law School. Contact him at mark.squillace@colorado.edu. For information on EPA’s proposed rule defining “waters of the United States,” go to http://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm


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The Summit Daily Updated Jun 26, 2014 11:00AM Published Jun 27, 2014 10:59AM Copyright 2014 The Summit Daily. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.