News for the ‘Clean Water Act’ Category

All the high fives money can buy

As much as the natural gas industry complains about the costs of environmental compliance, it spends a great deal of time and money fighting to keep hydraulic fracking unregulated, and its claims of safety and economic prosperity unquestioned. Their campaign to put a happy face on this harmful technology is designed to stifle the growing movement to ban fracking across the country: to date, at least 76 local and state governments have passed laws banning the practice within their borders.

As Wenonah Hauter over at Huff Post observed, the industry spent over $145 million lobbying Washington in 2010, making it one of the top five industries spending big money to buy influence — and it seems to be working: In January 2011, bipartisan congressional members of the Natural Gas Caucus opposed proposed U.S. Department of Interior rules to disclose fracking chemicals used on public lands; this caucus’ 83 members received a combined $1,742,572 in campaign contributions from the oil and gas industry between 2009 and 2010, according to a Propublica investigation.

By now, you may have seen an industry ad like this, talking up gas as a means of American energy independence and prosperity, but what they don’t say is that there are plans to export it to China and India — and profits too, as these companies are increasingly multinational or even foreign-owned.

Their hired PR guns also come out blazing when unfavorable coverage of the industry erupts, as it did in the New York Times, when reporter Ian Urbina exposed industry insider emails questioning the favorable forecasts the industry has put out on fracking — one insider going so far as calling drilling leases “Ponzi schemes.” As Politico reports, John Hanger, once secretary of the Pennsylvania Department of Environmental Protection and now an environmental consultant, compared Urbina to Judith Miller and Jayson Blair, saying “This is not their [the Times‘] first rogue reporter.”

The Marcellus Shale Coalition (whose members have a financial stake in fracking the Marcellus shale) spent a total of $1.8 million on its PR initiatives in 2009, while the Independent Petroleum Association of America (IPAA) has an $8 million budget, according to the Pittsburgh Tribune-Review. One of IPAA’s initiatives is Energy in Depth, a web site devoted to debunking the documentaryGasland.

Now, the American Petroleum Institute (API) is poised to spend $20 million on an “advocacy campaign”. We don’t know for sure, but given the industry’s difficulties in defending fracking over recent months, we bet this money will go towards a campaign that will continue to spin fracking as a safe means of achieving prosperity and energy security.

How does the industry keep contamination under wraps? It pays settlement fees to families whose water has been contaminated by shale gas drilling — fees that hinge on the landowner signing a confidentiality agreement to keep details about the case from government agencies, the media and the public.

As highlighted in a recent New York Times article, the industry pays to keep details of the public safety problems associated with gas drilling hidden from government agencies that could do something to regulate it. This has been happening for decades, and it allows the industry to continue using one of its most disingenuous talking points: that there have been no documented cases of contamination from gas drilling.

In May, New York Attorney General Eric T. Schneiderman sued federal agencies to provide a full environmental review of fracking in the Delaware River Basin since it could affect the drinking water of nine million New Yorkers.

API, IPAA and the US Oil & Gas Association intervened in the case, arguing that its members would be adversely affected. But two of the 10 federal agencies sued by Schneiderman have actually supported further review of fracking — the National Park Service and the U.S. Fish and Wildlife Service.

Recently, Wellsburg, West Virginia rescinded a ban on shale gas drilling. It appears that one reason for this might be that Chesapeake Energy recently rescinded its funding for the community’s school music program in direct response to the ban. $30,000 might not seem like a lot, but for a struggling rural school system, it certainly is no small potatoes.

A more straightforward example of how the industry buys influence beyond Washington is in New York State, where the oil and gas industry spent $1,204,567 lobbying against fracking moratorium bills in 2010, outspending groups supporting the bills 4 to 1.

Spending big money to influence policy in New York paid off for the industry. The New York Department of Environmental Conservation released a report early last month suggesting that 85 percent of the Marcellus Shale be opened up to fracking, and Governor Andrew Cuomo appears to be on board.

The industry hires academic shills who prepare reports that shine a rosy light on the industry — while glossing over serious concerns. In June, an MIT report titled, “The Future of Natural Gas” was funded by the oil and gas industry. As they write on their site:

In FY 2010, MIT’s industry-sponsored research totaled $111 million. More than 800 firms now work with MIT, both in Institute-wide programs such as the Industrial Liaison Program and the MIT Energy Initiative and in smaller collaborations… More than 180 companies partner with the program to improve their access to MIT and advance their research agendas [emphasis added].

Penn State also recently released a pro-fracking report funded by the Marcellus Shale Coalition. Media Matters for America recently took the New York Post to task for citing the report in an editorial supporting fracking, without mentioning the industry group that actually paid for it.

This happens all too often, and is a way for the industry to launder credibility for its position through third-party academic institutions.

At a June hearing in Washington, Pennsylvania, numerous landowners who had leased their land to gas drillers appeared at a hearing to talk about the benefits of fracking. But it’s what got them there that’s the interesting story: they were offered Pirates tickets, in addition to hotel rooms and travel expenses. That was one way the industry assured that the spaces at the hearing would be filled with pro-drilling voices.

It’s not much better in Washington, D.C. At the July 13 meeting of the Natural Gas Subcommittee of the Secretary of Energy, Advisory Board Safety on Shale Gas Development, the industry overwhelmed the proceedings (click here to see testimony.)

Posted: November 9th, 2011
Categories: Clean Water Act, Energy, Property
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Why Virginia Uranium won’t buy insurance

Since their profits depend on making sure they end up on the right side of every transaction, insurance companies are proxies for all kinds of modern dilemmas.

For example, when they started factoring global warming in their underwriting, even as America was neck deep in a useless and political argument, it was a sign that their mathematicians had already decided it was a real problem.

This week, the folks from Virginia Uranium held an editorial board meeting for the Hampton Roads newspaper right before their appearance before the Virginia Beach City Council.

They were there to debunk the city-sponsored study showing that uranium mining in Pittsylvania County could imperil the water supply for a million people in Hampton Roads.

A Virginia Uranium-sponsored counterstudy concluded instead that the risk was “essentially zero.”

Which raises the question: If there’s no risk, it should be easy to buy insurance to guarantee the people of Virginia clean water.

That is, after all, how insurance works. If there’s no risk, there’s almost no cost to insure against it. When a star insures her physical assets, for example, the cost of that publicity stunt is low because the risk is, too.

Virginia Uranium’s representatives spent almost an hour explaining how the Virginia Beach study got it all wrong.

How there’s no way that their mine could lead to contamination in the city’s water. That not even a hurricane could wash mine tailings into the reservoir.

That’s when one reporter asked the insurance question: So, would you like to buy a policy?

It was an absurdist question with a real point: Put your money where your risk analysis is.

But Walter Coles Jr. and the scientist who reached the zero risk conclusion, Alan Kuhn, looked uncomfortable.

That’s not how these things work, they responded. That’s a regulatory issue. Companies don’t insure populations from risk.

Why not?

We could get rid of all that pesky regulation if corporations like Virginia Uranium would shift the risk from taxpayers to themselves. If companies would pay the real cost of the dangers they present. If they would insure bystanders against the catastrophes they might cause.

That’s about when the earthquake shook from a fault a few miles from the North Anna Nuclear Power Station. I’m sure there was no connection.

Posted: September 7th, 2011
Categories: Clean Water Act, Energy, Property
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Mountaintop removal and valley fill

The Appalachian Mountain range dates back 300 million years. Its coal is the residue of peat bogs formed in tropical coastal swamps when there was a single supercontinent, Pangaea. But it takes only a matter of months to tear down a mountain peak using explosives and giant excavators. The technique is both faster and less labor-intensive than underground mining, and allows profitable access to thin coal seams that otherwise might not be worth harvesting. Since the mid-1990s, the coal industry has cut a swath of devastation through Appalachia’s remote, coal-rich highlands, one of the nation’s most dramatic cases of environmental devastation and regulatory failure.

The fate of the peaks has drawn international attention, but what goes on in the valleys is in many ways more significant. Each spring, the rain that falls on Appalachian mountainsides gathers into thin rivulets, mixing with spring water and groundwater. These streams, often no more than a foot wide, teem with microscopic, insect and animal life that is the foundation of the forest and river food chains and biodiversity. Plug up those intermittent and ephemeral streams with mining debris, and the ecological fallout extends far beyond the edge of the valley fill, into the surrounding forest and the larger perennial streams and rivers down the mountain.

A valley fill, for instance, profoundly alters forest hydrology. When the rainwater hits a valley fill instead of a stream bed, it filters through broken shale and sandstone before flowing out at the bottom. Ordinary minerals liberated from deep inside demolished mountains – heavy metals such as selenium and magnesium – infiltrate it and flow downstream.

During the Bush years, government scientists produced a growing pile of studies that show how valley fills foul waterways. FWS biologists found that heavy concentrations of selenium in West Virginia’s Mud River, downstream from the huge Hobet 21 mountaintop mine, were causing deformed fish. A 2008 EPA study showed that a huge increase in “specific conductance” – the concentration of electricity-conducting metallic ions – immediately downstream from valley fills was wiping out entire populations of mayflies, a ubiquitous species whose disappearance indicates broader ecological effects.

Destroying waterways and aquatic life are, of course, illegal. But in the bureaucratic funhouse of mountaintop removal, laws may say one thing while actions point in the opposite direction. By a commonsense interpretation, valley fills violate parts of two federal laws, the Clean Water and Surface Mining and Reclamation Acts. But since the 1990s the coal industry and its allies in government have engineered a series of legal and regulatory workarounds.

For instance, the surface mining law banned mining activity within a hundred feet of a stream if it had a significant impact on water quality or the environment — something that would seem to prohibit actually dumping mining debris into the stream in question. But that rule was never enforced, and in the waning days of the Bush administration it was rewritten to make the practice legal. (Interior Secretary Ken Salazar recently announced plans to revoke that change, but left it unclear whether he intended to enforce a ban on dumping.)

Yet it’s the Clean Water Act that environmental groups have relentlessly focused on, filing a series of lawsuits charging the Corps with failing to meet its enforcement obligations, which state that “dredged or fill material should not be discharged into the aquatic ecosystem” if it will cause “significant degradation to the waters of the United States.” Among other things, that includes disrupting the life cycles of aquatic organisms and the loss of fish and wildlife habitat. Again, it seems logical to assume that burying a mountain stream would meet those criteria. But that’s not the way it’s worked up to now.

Put simply, the Corps evaluates the environmental effects of valley fills using techniques that many scientists criticize as insufficiently rigorous. Scientists and environmental groups also object to the Corps’ approach to mitigation, the notion that you can make up for destroying one stream by building another one. That might mean digging a new stream bed nearby, or “mitigation banking” in which a mining company pays to protect and restore a wetland elsewhere.

But streams evolve in landscapes over the millennia and support complex webs of life that cannot be easily replaced, if at all. Stream creation is outside the realm of current science. There’s no evidence at this point in time it’s even feasible. A typical stream construction technique practiced by coal companies, is crude at best: old drainage channels are converted to “streams.”

This dispute remains unresolved in part because the law divides responsibility for valley fills between the Corps, EPA, the Interior Department’s Office of Surface Mining, and the states. The Corps’ jurisdiction is limited to the stream itself and 100 feet on either side, the OSM oversees what happens on the whole mine site. It’s the EPA’s job to look at the entire ecosystem. And the crossed lines of authority have created a regulatory morass and led to erratic, desultory enforcement. The result has been drift: Coal companies can get permission to demolish mountains and fill streams, but they must also deal with more regulatory hurdles while facing continued uncertainty. It’s this situation, untenable for all involved, that the EPA is attempting to resolve.

But the stakeholders do not seem eager for a compromise. At least up to now, the coal industry has usually gotten most of what it wants, giving it little incentive to negotiate. Environmental groups want to see mountaintop removal banned outright. And the Corps, which must also participate in any negotiation, has jealously guarded its permit authority from what it sees as EPA interference. While Obama’s nominee to run the Corps, Jo-Ellen Darcy, handled environmental issues for the Senate Finance Committee and is well-regarded by environmental groups, the Corps is notoriously resistant to change. Lastly, it’s doubtful that a true middle ground — in which mountaintop removal continues with limited changes and the mountain environment is preserved — even exists.

EPA hopes to limit the damage to stream beds by reducing the size of some valley fills, paying more attention to their placement, and by doing more, and better, stream restoration. Such a negotiated, incremental approach could blunt some of the damage, but may not significantly reduce the vast scale of mountaintop projects. And coal companies will resist major changes, especially in the size of valley fills. A study commissioned by the EPA found that sharply limiting the size of valley fills would also restrict the amount of coal harvested. Capping them at 35 acres — a fraction of the size of the average fill, which can cover hundreds of acres — would reduce mountaintop coal production by 77 percent.

Posted: January 18th, 2011
Categories: Clean Water Act, Energy
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CWA Jurisdiction, Rapanos and Raich

Congress enacted the 1972 Clean Water Act to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” To achieve this goal, the CWA created a framework that uses Water Quality Standards, Total Maximum Daily Loads (TMDLs) for non-point source pollutants, and a system of permits that must be acquired before dredged or fill material can be discharged from a point source into navigable waters. These provisions were intended to create “a comprehensive approach to regulating pollution and improving the quality of the nation’s waters,” and to guide states towards national water quality goals.
Central to the CWA is its prohibition against “discharge of any pollutant by any person” into covered waters, subject to a series of exceptions. One of these exceptions, which is most frequently implicated in the context of wetland management and use, is section 404 of the CWA, which requires that:

Any discharge of dredged or fill material into the navigable waters incidental to any activity having as its purpose bringing an area of the navigable waters into a use to which it was not previously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced [is] required to have a permit [issued by the Army Corps of Engineers.]

Section 404 of the CWA has been referred to as “the centerpiece of federal wetlands regulation,” and as “the most significant federal regulatory scheme related to wetlands protection.” The Environmental Protection Agency (EPA) holds primary responsibility for administering the CWA. How-ever, section 404 of the CWA is co-administered by the Army Corps of Engineers. The substantive criteria used in determining when a section 404 permit should be granted are set out in regulations which the EPA and the Corps promulgate together, and the permit program is subsequently administered by the Corps alone. Additionally, the EPA has “veto” authority over the Corps’s permitting decisions, and both agencies have enforcement authority. The scope of the Corps and EPA’s jurisdiction is described as “navigable waters.” The CWA defines “navigable waters” cryptically, as “the waters of the United States, including the territorial seas.”
It has never been clear how wetlands fit into that category. Wetlands have been problematic in the context of section 404, in part because although a wetland has a biological and ecological identity, the term, as it is used in section 404, is “jurisdictional in nature, not scientific.” Only wetlands whose use affects interstate commerce are subject to CWA jurisdiction. The Corps traditionally asserted broad jurisdiction over wetlands, included: (1) wetlands that were used or could be used by migratory birds, and as such could affect interstate commerce (the “Migratory Bird Rule”); (2) wetlands that abutted surface watercourses, and; (3) wetlands adjacent to surface water courses.
Adjacent wetlands were broadly construed, as “areas inundated or saturated by surface or groundwater at a frequency and duration sufficient to support … a prevalence of vegetation typically adapted for life in saturated soil conditions.” This broad interpretation of the Corps’ jurisdiction over wetlands held sway with the Court until the mid nineties. For example, in the 1986 Riverside Bayview Homes case, the Court upheld the Corp’s jurisdiction over “marshy land” near Lake St. Clair in Michigan, on the theory that the property constituted an “adjacent wetland” under the Corps’ 1975 regulations. Noting that the Corps’ construction of the statute was “entitled to deference if . . . reasonable and not in conflict with the expressed intent of Congress,” the Court examined the legislative history of the CWA, and found that Congress had deliberately adopted an expansive definition of “waters” to reflect the broad underlying purposes of the CWA. Writing for the majority, Justice White’s observed that Congress had designed the CWA to “create a mechanism by which to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Citing the broad systemic purposes of the CWA, and acknowledging that evidence presented by the EPA demonstrated the close hydrological and ecological connections between wetlands and nearby waters, the Court determined that the Corps’s conclusion that section 404 applied to adjacent wetlands was reasonable.
Wetlands to Seasonal Puddles: SWANCC, Raich, and Rapanos
The Court’s 2001 decision in SWANCC was heavily influenced by its decisions in two Commerce Clause cases that, at that time, were relatively new. In United States v. Morrison and United States v. Lopez, the Court “reaffirmed the proposition that the grant of authority to Congress under the Commerce Clause, though broad, is not unlimited.” These decisions were highly relevant to the outcome in SWANCC because it was the commerce power that Congress relied on for the authority to regulate navigable waters through the CWA. The Court determined that the Corps’ use of the commerce clause to regulate isolated wetlands because they provided habitat to migratory birds “invoke[d] the outer limits of Congress’s power. In such a situation, the Court decided, the Army was required to provide a “clear indication that Congress intended that result,” and to demonstrate that a “significant nexus” existed between the isolated wetlands and “navigable waters.” The Court found that the required nexus was lacking in SWANCC, where the wetlands at issue were not directly adjacent to any waters covered by the CWA. The SWANCC decision thus eliminated CWA jurisdiction over “isolated, intrastate, non-navigable waters where the sole basis for asserting CWA jurisdiction is the actual or potential use of the waters as habitat for migratory birds.'”
In 2005, the Court broke the Lopez / Morrison trend towards a narrower Commerce Clause with its decision in Gonzales v. Raich. Raich involved California’s Compassionate Use Act (CUA), which permits the use of marijuana for medical purposes. The Act exempts from criminal prosecution those who possess or cultivate marijuana for medical purposes upon the approval of a physician. The respondents in Raich were using marijuana in accordance with the CUA but were nonetheless prosecuted under the federal Controlled Substances Act (CSA). The question for the Court was whether the provisions in the CSA prohibiting personal use of marijuana for medicinal purposes were valid exercises of Congress’s Commerce Clause authority. The Court held that the CSA was within the bounds of Congress’s commerce power. The majority distinguished Lopez, arguing that, unlike the Gun Free School Zone Act at issue in that case, the CSA “was a lengthy and detailed statute creating a comprehensive framework for regulating the production, distribution, and possession of . . . ‘controlled substances.'” Although the respondents’ personal use of homegrown marijuana was concededly a purely intrastate activity, the Court found that the federal prohibition of this activity was part of “a larger regulation . . . in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” Accordingly, the Raich Court upheld CSA jurisdiction over purely intrastate activities to be valid as an essential part of a broader regulatory scheme.
Even before Raich’s broad interpretation of the commerce power, lower courts had tended to interpret SWANCC narrowly; they read it as restricting the Corps’s jurisdiction over wetlands only where jurisdiction “turned solely on the potential presence of migratory birds.” In 2006, disagreement among the circuits as to the scope of SWANCC prompted the Supreme Court to grant cert on a pair Sixth Circuit decisions “that upheld federal jurisdiction over wetlands adjacent to non-navigable tributaries of navigable waters” – Rapanos and Carabell (consolidated) (“Rapanos.”).
The five opinions in the Rapanos expose sharp divisions among members of the Court about the scope of the CWA and leave some doubt as to the current state of the law. Writing for a four person plurality, and relying primarily on a 1954 edition of Webster’s New International Dictionary, Justice Scalia found that “[“waters of the United States’] includes only those relatively permanent, standing or continuously flowing bodies of water “forming geographic features’ that are described in ordinary parlance as “streams[,] … oceans, rivers, [and] lakes.” He conceded that there was an “inherent ambiguity” in attempting to draw a line between water and land, and so he deferred to the Corps’ decision to include wetlands that actually abut “traditional navigable waters.” Beyond this, however, he refused to recognize the Corps’ authority. He wholly rejected the dissent’s claim that Congress acquiesced to the Corps’ rules, and that those rules merit deference under the Chevron doctrine. Regarding the issue of deference, he found that whatever ambiguity might exist with respect to the meaning of the phrase “waters of the United States,” it does not extend to “whether storm drains and dry ditches are “waters.'”
Discussion
Rapanos was inconsistent with the underlying purpose of the Clean Water Act. A predicate of the Act … has been that clean water and related wetland values inhere to the entire nation and that a federal program is necessary to protect, restore, and maintain them.” The plurality adopted a strict textualist + selective use of dictionary approach, arguing that to allow the Corps the jurisdiction it sought would leave the term “navigable” without any significant meaning. It further asserted that the use of “waters” indicated that the statute refers only to relatively permanent waters such as oceans, rivers, lakes and other bodies of water which form more conventional geographic features.
This approach is problematic for at least two reasons. First, the plurality disregarded the substantial body of scientific evidence indicating that wetlands affect all the bodies of water in proximity to them, such that any jurisdictional separation between traditionally “navigable waters” and the wetlands near them is essentially meaningless. Second, the plurality ignored the fundamental and explicit goal of the CWA, to create a comprehensive scheme to maintain the integrity of the nation’s water systems as a whole, an objective requiring that wetland preservation be taken into account.
In addition, Rapanos is inconsistent with the Court’s 2005 decision in Raich. Although Rapanos deals with the reasonableness of the Corps’s interpretation of its jurisdiction under section 404 and not the constitutionality of section 404 itself, the Court addressed the Commerce Clause issue in dicta. According to the Rapanos plurality, “The extensive federal jurisdiction urged by the Government would authorize the Corps to function as a de facto regulator of immense stretches of intrastate land.” The plurality argued that “the Corps’ interpretation stretches the outer limits of Congress’s commerce power and raises difficult questions about the ultimate scope of that power,” thus suggesting that Congress was without authority under the Commerce Clause to regulate wetlands adjacent to tributaries.
This view does not comport with the Court’s decision in Raich. In Raich, the Court explained that congressional regulation of intrastate activities was a valid exercise of Congress’s commerce power where it was an essential part of a comprehensive statutory framework regulating an activity which had substantial effects on interstate commerce. The use of the nation’s waterways for transportation and commerce, for the production of power and municipal water supplies, and for protecting ecological resources, plays a central role in interstate commerce and in the health of the national economy. Further, the dredge and fill activities regulated by section 404 are typically engaged in by “commercial actors for a commercial profit.” If the CWA cannot regulate the use of wetlands that have a hydrological connection to navigable waters, an essential mechanism for protecting the integrity of the nation’s waterways as whole. If the integrity of the nation’s waterways is not protected, activities that rely upon those waterways will be restricted to an unpredictable degree. The result could substantially, even catastrophically, affect interstate commerce.
Congress recognized that watersheds do not conform to political boundaries, and that the degradation of waterways, therefore, was necessarily an interstate matter. In response it promulgated the CWA. The CWA create a comprehensive framework for regulating point sources of water pollution so as to prevent these types of situations from arising. The Corps’s interpretation of its jurisdiction under section 404 of the CWA does not “push the outer limits of Congress’s commerce power,” but rather fits squarely within the conception of Congress’s authority advanced by the Court in Raich. Given the interconnected and cyclical nature of water systems, regulation of these wetlands is a federal matter, fully within Congress’s purview under the Commerce Clause.
Raich seemed to suggest that the Court was more prepared than it had been to accept this kind of broad conception of the commerce power. Raich was a marked departure from Lopez and Morrison. Arguably, it signaled a return to the Court’s anti-revisionist, deferential reading of federal authority over isolated, purely intrastate, activities, where such regulation served a broader legislative purpose. Even in light of the concerns about federal intrusion on areas of traditional state sovereignty, Raich suggests that “not all intrastate concerns traditionally reserved to state regulation should necessarily remain so, particularly where Congress has enacted a comprehensive statutory scheme.” Indeed, if Raich is to be reconciled with Lopez and Morrison, it must mean what it says: where Congress enacts a comprehensive framework for advancing a national purpose, and that purpose could be undercut unless intrastate activities are regulated, it is a valid exercise of the commerce power to regulate those activities. As it is difficult to imagine a more comprehensive statutory scheme than the framework for managing the nation’s waters set forth in the Clean Water Act, it seems that the Corps’ assertion of CWA jurisdiction in Rapanos should have received the same level of deference given to the CSA in Raich.
At a broader level, Rapanos is a case about the inherent conflict between the national need to preserve ecological resources, and local desires for the employment and tax revenue that comes from developing wetland real estate, on the other. This tension makes a strong case for a prominent federal role in wetlands protection. Yet local governments seem best equipped to understand local needs and the relationship between particular wetlands and local economies. At the very least, wetlands regulation could benefit with active participation from state and local governments. As the plurality noted, when one considers a hydrological model in which all wetlands affect the water bodies around them, “even the most insubstantial hydrologic connection may be held to constitute a ‘significant nexus.'”
In response to the Court’s decisions in Rapanos and SWANCC, Congress attempted to amend the CWA so as to give the Corps jurisdiction over isolated and adjacent wetlands, thus resurrecting the wetlands protection lost as a result of SWANCC. The 110th Congress intro-duced, but did not enact, the Clean Water Authority Restoration Act of 2009. The CWRA is currently under consideration by the 111th Congress. This bill would delete the term “navigable” from the CWA, codifying the Corps’s jurisdiction over “waters of the United States.”
This approach is misguided for several reasons. First, the Court’s dicta in Rapanos and its other recent CWA cases suggest that it might strike down such legislation as unconstitutional under the Commerce Clause. The decisions in Lopez and Morrison marked a distinct change in its Commerce Clause jurisprudence, suddenly curtailing a Congressional power that had ballooned without check for more than a hundred years. The Court’s decision in Raich did appear to reverse or at least limit that new trend, but the fact that the Court was unwilling to accept Corps jurisdiction in Rapanos, even after Raich, suggests that the Court is likely to apply a relatively narrow, Lopez-like reading of the Commerce Clause to an amendment like the CWRA, particularly to the extent that the amendment is justified under Congress’s power to regulate intrastate activities having a substantial effect on interstate commerce. In light of the Court’s reluctance to allow the kind of comprehensive authority necessary for a truly effective federal wetlands protection program, a legislative solution aimed at fostering the development of strong state wetlands protection programs may prove more effective than adding language to the federal statute.

Posted: January 15th, 2011
Categories: Clean Water Act
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