June 22, 2012

The New York Times and Clean Water Act guidance

By Damien M. Schiff Senior Attorney

Earlier this week, the Times editorial page noted that it has been a year since EPA and the Army Corps proposed to issue new “guidance” designed to “interpret” the agencies’ authority under the Clean Water Act following PLF’s 2006 jurisdiction-limiting victory in Rapanos v. United States.  The gist of the oped is that the agencies should go ahead and finalize the guidance, notwithstanding the significant opposition of industry, agriculture, and property rights groups (like PLF).  The Times approvingly cites the environmentalists’ view that the proposed guidance is a reasonable approach to federal water quality regulation (my emphasis added):

Environmentalists welcomed the guidance for its clarity and common sense: Small tributaries and wetlands with a hydrological connection to larger downstream waters would be covered.

So, the Times gets it without getting it.  The one thing that everybody agrees on when it comes to Clean Water Act jurisdiction is that Rapanos did away with the agencies’ hydrological connection theory, i.e., there’s jurisdiction if water could flow from a wetland to a navigable-in-fact waterbody, no matter how far the waterbody or how unlikely the connection.  Well, isn’t that exactly what the Times believes the proposed “guidance” (read “run-around to a Supreme Court decision”) would do?

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