The Clean Water Act is a piece of congressional
legislation that authorizes the Environmental Protection Agency to regulate the navigable waters of the United States. The statutory goal ultimately is eliminating
all pollutant discharge. So, what’s at stake is the capacity of the statute, the way it’s being administered, to achieve those goals. Broader, more expansive coverage is more likely to promote those goals. Narrower, less expansive coverage is likely to create a risk that we’re not going to achieve the fishable, swimmable waters that the statute is designed to achieve. The phrase “navigable waters” is one which has had a variety of consequences throughout our history, but it has never had a precise definition. Over more than 40 years now, agencies have
been going back and forth with different regulatory definitions of what a navigable water is. That becomes important because the agencies have to know: how far can they regulate? They can regulate no farther, under the Clean Water Act, than regulating discharges into navigable waters. The term navigable waters originated in an entirely different context in terms of defining the scope of the federal government’s constitutional authority to regulate certain activities that relate to water. The idea there was in part to make sure that
rivers, lakes, and streams remain navigable so that river traffic could proceed down those waters. There is a stark difference between what some people consider to be navigable waters and what the statute is designed to cover. The operative term really is waters of the United States, not navigable waters. Congress was trying to ensure that a broad range of waters and wetlands were protected. Basically, anything that could affect the integrity of the hydrological cycle. And the reason we want to protect the chemical, physical, and biological integrity of waters of the United States is, number one: people may drink that water. We don’t want people drinking polluted water that creates hazards to their health. Even if they’re not drinking the water, they may expose themselves or encounter the waters for recreational purposes. And, again, if the water is polluted, that exposure creates a public health risk. Finally, even if people are not directly using the water, the water is often integral to the integrity of some ecosystem. There was no precedent for what waters of the United States means, given that it was a newly created term in 1972, and so EPA and the Corps of Engineers had to figure out what Congress meant by waters of the United States, and they issued regulations in the 1980s which have been amended several times since then. And, so, we have the Rapanos case in the mid-2000s in which the US Supreme Court through a variety of plurality opinions tried to determine whether or not the EPA’s then-definition of navigable waters was satisfactory. Kennedy’s opinion said that a body of water qualifies as a water of the United States if there is a significant nexus between a
body of water or a wetland and a traditionally navigable body of water like a lake or a stream or a river. The Significant Nexus Test is designed to identify those bodies of water or wetlands which are not per se covered by the rule, whose pollution will or might adversely affect the chemical, physical, or biological integrity of a water of the United States. That might be a wetland, for example, that is not directly adjacent to a river, a lake, or a stream, but that has some impact on the quality of the water in those bodies of water or wetlands. Chief Justice Roberts, in a separate opinion, urged EPA and the Corps to amend their regulations defining waters of the United States because the definition was unclear and created uncertainty for everybody: for the agencies, for regulated parties, for those who benefit from regulation. That broad ruling, of course, raised a lot of controversy. In order to get a permit to discharge into a water of the United States it can sometimes take… I think the average is something like 270 days from the application period to afterwards. With the dredge and fill permit program, where you have a private property owner who wants to develop or build on the land, the land contains some wetlands, and the agencies say, “Well, you can’t fill these wetlands as a first step toward developing the lands unless you first get a permit from the Corps of Engineers.” It’s a substantial cost to individuals, who each are spending hundreds of thousands of dollars sometimes. We’re talking about the family-owned farm who happens to have a ditch a hundred miles away from a river that is now potentially ensnared in this process. But even if you believe that the regulation did at least something to clarify the scope of the Clean Water Act’s coverage, there are those who believe that the regulation is too expansive and that it covers too many waters, waters not intended to be covered by Congress. These small actors are required to expend substantial amounts of money obtaining the permits, substantial amount of time forgoing productive activity. All for something which is questionably useful, is also questionably unauthorized by the statute. I don’t think anyone really believes that at any point in the near future, anyway, we’re going to have no discharge of any pollutants into waters of the United States. We want to step down the degree to which pollution that might damage the environment or people who rely on the environment is occurring and, hopefully, someday we will at least have minimal discharge that doesn’t pose environmental and public health threats. Congress historically, at least since the 1930s but probably before that, has delegated authority to administer statutory programs to agencies because the agencies have more expertise than members of Congress do. The problem is that there’s some sharp disagreement over the extent to which the agency itself is committed to relying on the science in implementing statutes like the Clean Water Act.