Is Congress going to clear up the Clean Water Act morass?

May 13, 2013 | By JONATHAN WOOD

Over at the Cato at Liberty blog, Ilya Shapiro reports on an effort to rein in the EPA’s abuse of property rights under the Clean Water Act.  PLF has long been involved in the fight against the abuse of the Clean Water Act.  Most recently, we challenged the Army Corps of Engineers’ bizarre assertion that a dry arroyo in the New Mexico desert is a “water of the United States.”  We’ve also litigated two cases challenging federal bureaucrats’ use of the Clean Water Act to abuse property owner all the way to the Supreme Court: Sackett and Rapanos.

According to Ilya’s post, this proposal may protect property owners by more clearly defining “navigable waters,” the term used to identify the waters subject to the Clean Water Act.

[The proposal n]arrows the definition of “navigable waters” to waters that are “navigable-in-fact” or “permanent, standing, or continuously flowing bodies of water … that are connected to waters that are navigable-in-fact,” with explicit exclusions for such things as rainfall drainage channels and wetlands without a continuous connection to “waters of the United States”

This might clear up some of the confusion left by the fractured decision in Rapanos, a somewhat rare 4-1-4 decision, with no opinion commanding a majority of the justices.  It would reject the “substantial nexus” test adopted in Justice Kennedy’s concurrence.  And it would provide more protection than the plurality’s opinion by making clear that the Clean Water Act’s use of the phrase “navigable waters” requires that the regulated waters actually be navigable or connect to waters that are.

Perhaps Congress is heeding Justice Alito’s call, in Sackett, to provide the clarity necessary to protect property owners:

Real relief requires Congress to do what it should have done in the first place: provide a reasonably clear rule regarding the reach of the Clean Water Act. When Congress passed the Clean Water Act in 1972, it provided that the Act covers “the waters of the United States.” But Congress did not define what it meant by “the waters of the United States”; the phrase was not a term of art with a known meaning; and the words themselves are hopelessly indeterminate. Unsurprisingly, the EPA and the Army Corps of Engineers interpreted the phrase as an essentially limitless grant of authority. We rejected that boundless view, but the precise reach of the Act remains unclear. For 40 years, Congress has done nothing to resolve this critical ambiguity, and the EPA has not seen fit to promulgate a rule providing a clear and sufficiently limited definition of the phrase. Instead, the agency has relied on informal guidance. But far from providing clarity and predictability, the agency’s latest informal guidance advises property owners that many jurisdictional determinations concerning wetlands can only be made on a case-by-case basis by EPA field staff. (citations omitted)