April 16, 2003

Comment on the Definition of Navigable Waters in light of SWANCC

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Rulemaking:

Advanced Notice of Proposed Rulemaking on the Clean Water Act Regulatory Definition of "Waters of the United States"

Stated Purpose:

Obtain early comments on the scope of waters subject to the CWA

Summary of RSP Comment:

The Clean Water Act (CWA) provides the authority for the Army Corps of Engineers (Corps) and the Environmental Protection Agency (EPA) to regulate "navigable waters." For years, these agencies have interpreted "navigable waters" to give them the authority to regulate almost any waters and wetlands in the United States. In fact, their regulations were so broad that they interpreted "navigable waters" to include isolated, intrastate wetlands that would only be navigable to migratory birds. However, in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (SWANCC), the Supreme Court dealt a blow to this interpretation, holding that the CWA does not authorize the regulation of isolated wetlands.

In light of the SWANCC decision, the Corps and EPA are seeking public comments on whether to revise CWA regulations. Our review of the statutory language, Supreme Court precedents, and legislative history leads us to conclude that the scope of the CWA should be limited to include navigable waters (as traditionally defined) and waters that are directly adjacent to navigable waters. The reason for this is simple-statutes mean what they say.

It is important to recognize that a principled reading of the Clean Water Act, as recommended by this comment, would not result in wholesale destruction and pollution of water bodies and wetlands. States, localities, and private entities have both the incentives and the mechanisms available to protect waters not regulated by the Clean Water Act. Furthermore, evidence suggests those approaches are more effective at protecting environmentally valuable wetlands than federal-level programs run by EPA and the Corps.