More Clean Water Act hyperbole

September 04, 2013 | By REED HOPPER

FIELD and STREAM is sporting a breathless editorial online today entitled Wetlands Guidance? That’s Crazy Talk Apparently

The editorial bemoans the fact that the Obama Administration has not issued a final version of its proposed Wetlands Guidance in response to a 2006 U.S. Supreme Court decision that purportedly “ruled that Congress never intended for the Clean Water Act to protect isolated and temporary wetlands, as every administration had been doing since the CWA passed in 1972.”  Of course, that is “crazy talk,” because it’s not true.

In 2001, not 2006, the Supreme Court ruled that the federal government could not regulate isolated wetlands and similar waters because the plain language of the Clean Water Act did not authorize the regulation of such water bodies and to do so would likely violate constitutional constraints on federal authority.  In 2006, the Supreme Court reiterated its earlier ruling and castigated the Corps and EPA for not issuing “wetland guidance” in the form of enforceable federal regulations that represented these legal limits.  The Supreme Court expressly held in 2001 that the federal government had NOT been regulating isolated water bodies “since the CWA passed in 1972.”  The Supreme Court held just the opposite; that the Corps and EPA’s sudden regulation of isolated wetlands was contrary to the agencies’ original (1972) interpretation that the Clean Water Act only authorized the regulation of traditional navigable waters (i.e. channels of interstate commerce) and abutting wetlands.

The editorial also cites alarming claims that this 2006 ruling “removed protections on 20 million acres – including prairie potholes and 5,000 miles of stream sides.”  But this is just more “crazy talk,” because it’s also not true.  Local waters in every state are protected by state laws and other federal laws, including the Safe Drinking Water Act.  They are not unprotected as the editorial disingenuously suggests.

Finally, the editorial proceeds on the bizarre assumption that the Executive Branch can override Supreme Court mandates by the issuance of some nonbinding agency guidelines.  In effect, the editorial calls on the Obama Administration to ignore the law, as interpreted by the Supreme Court, and to unilaterally  impose its will on the country through illegal Wetland Guidance.  Now that is “crazy talk.”