Clean Water Act Guidelines still a muddle

Author: Reed Hopper

The New York Times praises the Administration for proposing new Clean Water Act guidelines that the Times says will restore "vital legal safeguards" to "millions of acres of wetlands and thousands of miles of streams" threatened by development and pollution as a result of recent Supreme Court decisions. What nonsense! The Supreme Court’s 2001 (SWANCC) and 2006 (Rapanos) decisions did not leave millions of acres of wetlands and thousands of miles of streams unprotected as the Times breathlessly claims. In fact, the Corps and EPA expressly state that the new guidance will "implement the Supreme Court’s decisions" and "is consistent with the principles established by the Supreme Court cases."

The Times also praises the Administration for providing clarity to regulators on the reach of federal authority under the Clean Water Act. But this is more nonsense. The guidelines run to 39 pages and are no more clear than the previous guidelines. The Times misapprehends the purpose of the guidelines; they are not intended to clarify federal authority but to confuse federal authority. This is evident from the fact that the guidelines are not offered as formal rules and so do not have the force of law. This allows the Administration to avoid a direct legal challenge to the guidelines themselves while allowing the Corps and EPA to interpret the guidelines any way they wish on a case-by-case basis. To further muddle the issue, the Administration still doggedly maintains that its current regulations, which by any fair reading were overturned (at least in part) by the SWANCC and Rapanos decisions, are still in full effect. These are the same regulations the GAO reported have never been consistently applied.  Additionally, in those areas subject to the greatest dispute; namely, "waters that are geographically separated from jurisdictional tributaries," the Administration says "it is not providing specific guidance" but is asking the regulators to continue with the current practice of ad hoc determinations.

Finally, the Times calls on Congress to pass legislation "reaffirming the original scope of the law." It is unclear how the Times would define the "original scope of the law," but previous attempts at such legislation have been based on the absurd claim that Congress originally intended the Clean Water Act to cover all waters in the United States. This is belied by the fact that the Supreme Court has twice determined that Congress never intended to regulate all waters, the Constitution prohibits such broad federal regulation, and Congress stated in the original act that it would defer to the States to control local land and water use.