Author: Damien M. Schiff
Recently, the Times ran an oped applauding the EPA and the Corps for producing a new Rapanos guidance and urging the agencies to codify the new proposed guidance in regulatory form. (My colleague Reed Hopper has previously posted his own trenchant thoughts on the same oped). The Times's point of view is not surprising, but several of the oped's assertions need correction.
1. "[The guidance was] welcomed, rightly so, by conservationists and others who have watched in despair as enforcement actions dropped and water pollution levels went up."
It is true that the agencies have alleged that the number of enforcement actions has fallen, but I would argue that the number is insignificant, particularly when one considers that when EPA does litigate, it plays very hard ball. The point is for EPA to make an example of a hapless landowner, and then parlay a legal victory against him into regulatory strong-arming against everybody else in the same boat. As for pollution levels going up, I think it's fair to say that the Nation's waters have become much cleaner over the last 40 years, and that nothing in the Supreme Court's recent Clean Water Act jurisprudence has caused a pollution regression. After all, the wetlands and streams that may have become nonjurisdictional because of those decisions have been deemed so precisely because their effect on traditional navigable waters is de minimis.
2. "Then came two Supreme Court decisions that left uncertain which waterways were protected by the law. A 2001 decision suggested that the law applied only to large navigable waterways, while a 2006 ruling suggested that only waters with a "significant nexus" to navigable waterways could be protected. Those decisions — plus subsequent guidance from the George W. Bush administration — confused regulators and exposed millions of acres of wetlands and thousands of miles of streams to development."
This is legal poppycock (and not the first time from the Times on this subject). The 2001 decision referred to—Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers—certainly did not suggest that the Clean Water Act applies only to traditional navigable waters. The Court simply stated that the law was passed pursuant to Congress's Commerce Clause power over navigable waters; consequently, Congress could not have intended to regulate isolated wetlands that have no direct effect on traditional navigable waters.
The Times is right that many courts have interpreted the 2006 Rapanos v. United States decision as imposing a significant nexus test, but the Times is simply off-base to conclude that Rapanos and the Bush Administration guidance put millions of acres of wetlands beyond the Clean Water Act's reach. In fact, we at PLF have consistently criticized the existing Bush Administration guidance because of its fairly patent attempt to do an end-run around Rapanos.