The Clean Water Act Needs A Reset

Federal environmental officials are notorious for distorting the letter and spirit of the Clean Water Act to expand their power over individuals, businesses and property owners nationwide.

If the Trump administration is serious about curbing job-killing bureaucratic overreach, it must roll back the tide of regulatory wrongs under this important, but widely misused, statute.

The act authorizes federal regulation of the discharge of pollutants into the “navigable waters” of the United States. When it was passed in 1972 (known then as the Federal Water Pollution Control Act), the term “navigable waters” had been understood for well over 100 years to mean actual navigable waters that could float a boat for use in interstate commerce.

That Congress intended the term to have its traditional meaning is evident from the fact that Congress relied on its power to regulate interstate commerce to pass the act and that the act itself expressly acknowledged that the states (and not the federal government) had the primary right and responsibility to protect local waters and control local land use.

In other words, the Clean Water Act set up a constitutionally required division of labor whereby the states would regulate upstream nonnavigable waters while the federal government regulated downstream navigable waters, as had been the case since the inception of our country.

But it didn’t take long for things to change.  Almost immediately, the government started to write the term “navigable waters” out of the act to include such things as adjacent wetlands. The Supreme Court allowed this expansion of the act in a case where the wetlands literally abutted and were physically indistinguishable from a traditional navigable water.

But the government took this decision as carte blanche to regulate even remote water bodies with no connection to navigable waters whatsoever.

The Supreme Court didn’t buy this expansion, however, and roundly chastised the government for its constantly changing definition of covered waters and reiterated the Clean Water Act was an exercise of Congress’ power over navigation.  The court held if the act were applied to remote nonnavigable waters it would impinge on the states’ power to control local land and water use and raise a constitutional conflict under the commerce power.

The Supreme Court’s admonition went unheeded. The government continued to regulate isolated water bodies and even asserted jurisdiction over all tributaries in the nation no matter how remote, intermittent or insignificant.

In Rapanos v. United States (2006), the Supreme Court ruled again that the government had gone too far and had no authority under the Clean Water Act to regulate all tributaries to navigable waters.

In defiance of these Supreme Court rulings, the Army Corps of Engineers and the EPA issued a formal rule in 2015 redefining “navigable waters” to cover virtually all waters (and much of the land) in the country, known as “waters of the United States” (or WOTUS), including all tributaries and many isolated water bodies the Supreme Court had expressly excluded from federal regulation.

After the rule was adopted, internal memos were leaked that warned the rule was scientifically flawed and legally indefensible. Top agency officials ignored these warnings. The rule was immediately challenged in court by 31 states and almost 60 municipal, industry and private organizations.

The impact of the rule can’t be overstated.  It’s the most far-reaching federal statute in the nation’s history. It subjects tens of millions of public and private landowners to heavy-handed federal regulation.  Under the rule, no one can disturb covered waters without federal approval or face ruinous fines of $37,500 a day and/or imprisonment.

This is not what Congress intended nor what the law allows. Two courts have issued preliminary injunctions staying the rule on the basis that it is likely invalid statutorily and constitutionally. The validity of the rule is now being litigated in the Sixth Circuit Court of Appeals.

It is clear, however, that the government’s defense of the rule is not driven by a desire to vindicate any particular legal principle but rather by bureaucratic inertia and hubris.

President Trump has declared the rule unconstitutional. It would be prudent, therefore, for the new administration to recall the rule and reissue a new rule in keeping with congressional intent, the statutory language, and long-held constitutional limitations on federal authority.

Published by Investor’s Business Daily