The Clean Water Land Grab: Congress Should Not Expand Federal Regulation under the Guise of "Restoring" Environmental Protections
Adler, Jonathan H., Regulation
In 1989, developer John Rapanos deposited dirt onto a portion of his property near Midland, MI. This was illegal, according to the U.S. Army Corp of Engineers, as Rapanos property contained federally designated wetlands, subject to regulation as "waters of the United States under the Clean Water Act (CWA), and Rapanos lacked a federal permit. The U.S. Supreme Court was not convinced. Upon hearing Rapanos's appeal, over 15 years after his alleged offense, the Court questioned whether the wetlands were indeed subject to federal regulatory jurisdiction.
Why the uncertainty? The CWA prohibits the unpermitted discharge of fill material into "navigable waters." But the wetlands at issue were over 10 miles away from the nearest navigable waterway and lacked any direct hydrological connection. One of the wetlands in question was connected to a manmade drainage ditch, which drained into a creek, which in turn flowed into the Kawkawlin River, which emptied into Saginaw Bay and Lake Huron. While the latter are unquestionably waters subject to CWA jurisdiction, a divided court held the Corps had to prove the law's expansive scope was capacious enough to encompass the wetlands in question. Specifically, the Court held the Corps needed to demonstrate Rapanos' property possessed a "significant nexus" to navigable waters before it could be regulated as "waters of the United States." Waters and wetlands lacking any discernible hydrological connection to navigable waters are simply beyond the scope of federal regulation.
Rapanos v. United States was not the first time the Supreme Court challenged a broad assertion of federal regulatory authority under the CWA. In a 2001 case, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), the Court rejected the Army Corps' claim that it could regulate an isolated intrastate lake in Illinois merely because it was used by migratory birds. Isolated intrastate waters lacking any meaningful connection to navigable waterways, the Court held, did not constitute "waters of the United States" subject to CWA regulation. While not every water or wetland subject to federal regulation had to be navigable itself, the Court refused to read the word "navigable" out of the act or countenance federal regulatory control over waters or wetlands lacking any connection to navigable waterways.
Environmentalist groups, among others, labeled Rapanos and SWANCC environmental disasters. Now, some members of Congress are seeking to overturn both decisions by amending the CWA. Their proposed legislation, the Clean Water Restoration Act (CWRA), purports to extend federal regulatory jurisdiction as far as it may go under the Constitution. Though promoted as a modest measure to "restore" pre-Rapanos regulatory authority, this legislation would dramatically expand the federal government's regulatory reach over waters, marginally wet lands, and much else. Billed as a measure to clarify the scope of federal jurisdiction, the legislation would in fact exacerbate existing regulatory uncertainty. Sold as a necessary environmental measure, it would do little to improve environmental protection. Like so much other environmental legislation, the CWRA is far more expansive and less desirable than it might at first appear.
DEFINING WATERS UNDER THE CWA
The Clean Water Act (formally, the Federal Water Pollution Control Act) was enacted in 1972 "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." It prohibits the "discharge of any pollutant"--defined to include dredged material, rock, sand, and solid or industrial waste--into "navigable waters" without a federal permit. Navigable waters, in turn, are defined simply as "waters of the United States."
This definition has left the scope of federal regulatory authority somewhat unclear. At the time of the CWA's passage, the Army Corps maintained wetlands were not included within the definition of "navigable waters. …