Love that dirty water
The Bush administration's EPA has struck a blow against the Clean Water Act:
The landmark U.S. law to fight water pollution will now apply only to bodies of water large enough for boats to use, and their adjacent wetlands, and will not automatically protect streams, the U.S. government said on Tuesday.
Environmental groups said they fear the new policy will muddy the purpose of the federal Clean Water Act and put many smaller bodies of water at risk.
This radical departure from the last three decades of enforcement (pardon the pun) springs from a Supreme Court decision from last year. Almost a year ago, the Supreme Court decided Rapanos v. United States, which asked the question: "What waters of the United States fall under the requirements of the Clean Water Act?"
For the previous thirty years, the EPA and the US Army Corps of Engineers had interpreted the Clean Water Act to apply not only to the navigable waters of the United States, but also waterways and wetlands feeding into those waters. Pollution of streams and marshes which weren't navigable but still posed the risk of pollution to larger bodies of water thus fell under the Act. This included streams which were only filled with water during certain periods of the year, which characterizes much of the American West.
Rapanos changed all that. In Rapanos, the Supreme Court couldn't come up with a majority opinion; instead, they split 4-1-4. On one side, Roberts, Alito, Scalia, and Thomas insisted that the Act should apply only to bodies of water which are "permanent, standing or continuously flowing" and directly connected to navigable waters. On the other side, Ginsburg, Souter, Breyer, and Stevens held that the EPA and Corps of Engineers should continue interpreting the statute the way they had been for the previous three decades.
Justice Anthony "Seesaw" Kennedy filed another opinion which conflicted with both sides, but which ended up forming something akin to a majority opinion. Kennedy said (via SCOTUSblog):
[T]he proper approach would be finding a "significant nexus" test to be developed by the regulating agencies. In the meantime, he asks for "case-by-case" review by the Corps when it "seeks to regulate wetlands based on adjacency to nonnavigable tributaries." Interestingly, the plurality suggests that Justice Kennedy is hoping for an outcome in favor of the agencies in its footnote 15 which says that "… by stating that '[i]n both the consolidated cases before the Court the record contains evidence suggesting the possible existence of a significant nexus according to the principles outlined above,' [citation omitted], JUSTICE KENNEDY tips a wink at the agency, inviting it to try its same expansive reading again."
Yesterday, the EPA threw out that instruction and instead decided it should only regulate waters which are navigable (plus associated wetlands directly connected to them). Non-navigable tributaries will no longer be regulated for pollution. This adopts the rejected view of the Scalia minority and flies directly in the face of Kennedy's opinion (via SCOTUSBlog again):
Under his view, to be addressed on remand, the Corps can for now on a case-by-case basis look at the permit application to see if federal jurisdiction exists. He explicitly calls for deference to the Corps, says that “waters” protected are more than just waters that are navigable, and rejects the plurality claim that only permanent, standing or flowing waters are federally protected. He explicitly notes that in the West rivers can stand dry for much of the year, then flow in thundering torrents. He also says wetlands need not have a “continuous surface connection” because they can still have “significant effects” on waters quality and the ecosystem.
The EPA is directly defying a Supreme Court directive. From the Reuters article linked above:
"In effect, the EPA and the Corps are taking their field staff and the public out to the woods, blindfolding them, spinning them in circles, telling them to 'go west,' and calling that guidance," complained Jon Devine, a senior attorney at the Natural Resources Defense Council.
Relief may be on the way:
Angered by the Supreme Court's split, Democratic lawmakers last month introduced the "Clean Water Restoration Act" that would drop the word "navigable" from the original law.
Rep. James Oberstar, a Minnesota Democrat sponsoring the legislation, said the single edit would make clear that the EPA must also protect watersheds, which are often creeks or estuaries where water has collected.
This would certainly correct EPA's error, and it would prevent the Roberts Court from deliberately misinterpreting Congressional intent.
Time's a-wastin'.