The New York Times has practically gone into mourning over the demise of the Clean Water Act. See Charlie Duhigg and Janet Roberts, Rulings Restrict Clean Water Act, Foiling E.P.A., N.Y. Times, February 28, 2010, www.nytimes.com/2010/03/01/us/01water.html?ref+us&pagewanted+print “Companies that have spilled oil, carcinogens and dangerous bacteria into lakes, rivers and other waters are not being prosecuted, according to the Environmental Protections Agency regulators working on those cases . . .” Goodness, gracious. Has the Act been repealed? Declared unconstitutional? No and no. The Clean Water Act is alive and well and the Times lamentations are not exactly accurate.
What the Times deplores is that in two relatively recent cases, Rapanos v. United States and Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Corps of Engineers, the U.S. Supreme Court held that the Act means what it says, namely, that its provisions apply to navigable water of the United States. Which means that the feds may not regulate non-navigable waters, streams, and assorted puddles that are not even connected to navigable waters.
This was a proper reaction to the Feds’ excesses such as the so-called “glancing goose” theory under which they claimed federal jurisdiction to regulate any non-navigable body of water that a migratory bird might pick as a place to rest or take a drink on its migration north. Or south. Voila, said the feds: interstate commerce – birds attract hunters and hunters may cross state lines to get ‘em and there you have a basis for federal jurisdiction. It didn’t fly, if you’ll pardon the pun, but it illustrated just how far the Feds were willing to push this stuff.
And it was not just the Feds. Your faithful servant was once involved in a case in Florida, in which a county doing the Feds’ bidding actually tried to argue to a court that growing citrus fruit in Florida was a nuisance. No, we are not making this up either. Fortunately their Lordships did not go for it.
Your faithful servant was also involved in another case in Florida where the Army Corps of Engineers invoked the Act and issued an order to our client to cease-and-desist “dredging and filling in waters of the United States” and to refrain from all other activities on the subject land. And what, do you suppose, was that rapscallion doing? He – actually it, it was a corporation – was plowing dry land in order to plant a new citrus grove. In other words, the Act was sought to be applied in absurd ways that would constitute an inverse condemnation taking of private land by denying all reasonable use of it. And by the way, in that Florida case the Feds never did explain how planting a citrus grove on bone-dry land is “dredging and filling in waters of the United States.” When it comes to dealing with natural water resources it is sometimes difficult to know what is federal land or what is private land. However, no matter who owns the source there is a possibility of it leading to and effecting the surrounding areas and its population. Some of the natural water sources often lead to homes within the surrounding towns and cities. To ensure that these waters are abiding by environmental regulations, most systems are fitted with electronic flow meters in order to monitor and measure the amount of water that ventures through our pipes and into our homes.
And in other cases, the feds actually argued that when you ride a bicycle through a wetland and its wheels kick up some dirt, which as dirt is wont to do, falls back onto the ground, that’s a case of pollution. No we are not making these things up. We couldn’t if we tried.
Regulations were at times applied so unreasonably that the feds claimed jurisdiction over activities involving virtually anything whether or not it had anything to do with “navigable waters of the United States.” For a discussion of some of these problems, see our article (co-authored with Michael M. Berger) entitled The Need for Takings Law Reform, etc., 38 Santa Clara Law Review at 846-853 (1998). So if the SWANCC and Rapanos decisions put a crimp into excesses of this sort, that may not be such a bad thing.
Besides, even if you assume for the sake of argument that the Times is right, and that SWANCC and Rapanos have hampered the enforcement of the Clean Water Act insofar as its enforcement by the Feds is concerned, what’s to prevent the states from regulating non-navigable waters within their borders? Nothing, as far as we can tell, so if the situation is nearly as dire as contended by the Times, that only means that the states are shirking their duty. So why isn’t the Times criticising them?