October 19, 2015

Let's get something straight about the Clean Water Act

By M. Reed Hopper Senior Attorney

The Clean Water Act does not contain “loopholes” allowing millions of stream miles to go unprotected, as this misleading editorial states.  Nor did the U.S. Supreme Court create such loopholes.

The Clean Water Act expressly prohibits the discharge of a pollutant to “navigable waters” of the United States without a federal permit.  The Act also expressly states:

It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources…

By its own terms, the Clean Water Act expresses congressional intent to protect lakes, rivers and streams through a division of labor whereby the States would protect non-navigable upstream waters and the federal government would protect navigable downstream waters.  This is not a legislative oversight.  It is compelled by constitutional limits on federal powers.

The U.S. Constitution does not expressly authorize Congress to regulate the environment.  But the Constitution does authorize Congress to regulate interstate commerce, which includes interstate waterways used for commerce such as certain navigable waters.  Non-navigable waters are under the purview of the States.  This has been the law since the founding of our Nation, over 200 hundred years ago.  The Clean Water Act is based on this understanding of the law.

However, the Army Corps of Engineers and the Environmental Protection Agency have distorted the law. They claim authority to regulate local land and water use not authorized by the Clean Water Act and prohibited by the Constitution.  This is the conclusion of the Supreme Court of the United States.  In 2001, in SWANCC v Corps, the Supreme Court declared the federal government could not regulate isolated waterbodies that had nothing to do with navigable waters or interstate commerce.  And, in 2006, in Rapanos v. Corps, the Supreme Court declared the federal government could not regulate every tributary and wet spot in the Country.  Why?  Because federal regulation of local land and water use would exceed the scope of the Clean Water Act and undermine state authority contrary to established constitutional principles.

This is not a “loophole.”  Waters not protected by the Clean Water Act are protected by State law.  The Corps and EPA’s unprecedented new rule reinterpreting the “waters of the United States,” to cover all local and state waters, is a blatant end run around the Act, Supreme Court precedent, and the U.S. Constitution.  That’s why PLF and 31 states are challenging the rule in court.

What to read next