October 6, 2014

Clean Water Act comment period extended

By M. Reed Hopper Senior Attorney

The comment period on the Corps and EPA redefinition of “waters of the United States,” has been extended (again) to Nov 14. In an interesting twist, the Scientific Advisory Board (SAB) is urging the agencies to broaden the rule even more than proposed so that some isolated waters (and even groundwater) can by covered categorically rather than on a case-by-case basis.  The comment period is being extended so that the public can react to the SAB analysis of the proposed rule which will be forthcoming.  Also, to allow public review of the final “connectivity report” on which the proposed rule is based.

The problem here lies in the clash between science and law. SAB suggests the obvious; that all waters are interconnected and therefore should be regulated.  The Corps and EPA infer from this that the federal government should do the regulating, rather than the States.  But the federal government does not hold a general police power, like the States, to regulate for the “public good” or for environmental protection generally.  Instead, the federal government is bound by a limited set of powers enumerated in the Constitution.  Federal environmental laws, like the Clean Water Act, the Endangered Species Act, and the Clean Air Act, are based on the unlikely congressional power to regulate “interstate commerce.”  So, when the Corps and EPA assert authority over a puddle-sized wetland, or a prairie pothole, or even a dry ditch, they are claiming to be “regulating commerce.”  This is an obvious fiction, but most courts allow it.

The only real constraint on the scope of the Clean Water Act has come from the U.S. Supreme Court.  In SWANCC, in 2001, the Supreme Court held the Corps and EPA could not regulate “isolated water bodies,” such as small pools with no direct connection to traditional navigable waters.  This was required, the court said, because there are limits to federal power under the Commerce Clause and federal regulation of such waters would impinge on the States’ powers to regulate local land and water use.  However, the agencies generally ignored this ruling.

In 2006, in Rapanos, PLF brought the agencies back before the Supreme Court challenging the agencies’ claim that they could regulate any water with a hydrological connection to downstream traditional navigable waters, no matter how remote, small or infrequent.  The Court agreed with PLF attorneys that this also went too far.  Four justices allowed that the Corps and EPA could regulate only ordinary rivers, lakes and streams and abutting wetlands while one justice would authorize the regulation of wetlands that have a “significant nexus” to traditional navigable waters.  All five justices concluded that the agencies could not regulate all tributaries or water bodies.  However, this decision has also been generally ignored.

Now, in a proposed rule, redefining “waters of the United States,” under the Clean Water Act, the agencies have abandoned all pretense and forthrightly assert that they can and will regulate virtually ALL waters in the Nation, including “isolated water bodies” and all tributaries, based on scientific findings that suggest all waters are connected and exert a “significant nexus” or effect on all other waters.  The rub lies in the reality that the federal power to regulate water (or land, or air) derives from the limited powers enumerated in the Constitution and not from a scientific consensus about how our natural resources should be protected.  The law requires the States to protect local resources while the federal government protects certain national resources.  From the foundation of the Union, debate has ensued about where to draw that line.  But the Corps and EPA seek to erase that line altogether.

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