EPA Reexamines Clean Water Act

Published March 1, 2003

Responding to a 2001 Supreme Court ruling that the Army Corps of Engineers and Environmental Protection Agency overstepped their bounds in enforcing the Clean Water Act, EPA has gathered and is now evaluating public comments regarding the scope of the Act. At issue is what qualifies as “navigable waters”–a definition at the heart of the Act’s application.

Congress based its constitutional authority to pass the Clean Water Act on its power to regulate interstate commerce. The Act forbids the discharge of any pollutant into “navigable waters” without first obtaining a permit from the Army Corps of Engineers. The Act explicitly exempts “normal farming … and ranching activities, such as plowing” that do not impair the flow or circulation of “navigable waters.”

EPA and the Army Corps have consistently defined the term “navigable waters” to mean not just navigable waters themselves, but any tributaries of navigable waters, swamps and wetlands in the general vicinity of navigable waters, and many isolated swamps, wetlands, creeks, and small depressions that hold water only occasionally.

EPA and the Army Corps additionally have defined “pollutant” to include rocks, sand, dirt, and even incidental redepositing of loosened soils back to the same place they came from.

The Supreme Court deemed all this word-smithing to be an overstepping of statutory authority, ruling in 2001 that the Army Corps had no Clean Water Act justification for forbidding an Illinois landowner from filling in an abandoned sand and gravel pit with landfill materials. The Corps had argued that a scattering of ponds had collected on the abandoned mine property; that migratory birds occasionally visited the ponds; and that the birds significantly affected interstate commerce. The Court ruled the presence of migratory birds does not transform an isolated wetland into navigable waters subject to the Clean Water Act; the commerce clause, the Court said, does not apply to non-economic activity within a state’s borders.

In response to the Supreme Court’s decision, EPA on January 10, 2003 began taking comments on the scope of the Clean Water Act. Comments were to be accepted through February 24.

Not everyone is happy EPA is reexamining its policies in light of the Supreme Court decision. “The Supreme Court decision was a bad one to begin with,” stated a January 11 New York Times editorial, “but the Clinton administration had applied it very narrowly and concluded that there was no reason to make any change in the existing protections other than the migratory bird rule.

“Homebuilders and others in the real estate development industry had urged the administration to go even further and deny protection to all ‘non-navigable’ waters including small streams, tributaries, and adjacent wetlands,” bemoaned the Times editorial.

Countered Gary Garczynski, president of the National Association of Homebuilders, “The federal government cannot require a permit when a landowner wants to fill an isolated wetland that is located only within one state and has no connection to navigation.”

Nancy Stoner, director of the Clean Water Project of the Natural Resources Defense Council, argued the Army Corps and EPA were using the Supreme Court ruling to revive an obsolete view of clean water regulations. “The earlier laws were focused on navigability,” Stoner observed, without citing any more recent clean water laws that apply to non-navigable waters.

“How seasonal wetlands constitute ‘navigable waters’ of the United States is a story for another day,” deadpanned Jonathan Adler, an assistant professor at Case Western Reserve University.

EPA’s reexamination of the Clean Water Act may help it avert additional successful challenges to the Act.

The Supreme Court in December 2002 deadlocked 4-4 on whether a California rancher violated the Clean Water Act when he plowed his fields to plant a fruit orchard. The Army Corps had fined the farmer $1.5 million when he loosened soil on his property, which was in the general vicinity of water, to allow growth of the root systems of his fruit trees. The Court could not reach a majority verdict in the case because Justice Anthony Kennedy was a friend of the farmer and recused himself from the case.

Kennedy had voted with the 5-4 majority in the 2001 case that served as the catalyst for EPA’s current taking of public comments. The Court appears ready to make future Clean Water Act decisions consistent with the 2001 case. Without a reexamination of the manner in which they interpret the Clean Water Act, EPA and the Army Corps may find themselves repeatedly losing Supreme Court cases regarding the scope of the Act.

James M. Taylor is managing editor of Environment & Climate News.