"Waters of the U.S." News
The EPA efforts to effectively remove the word "navigable" from the defining phase on the Clean Water Act continues to generate reaction. Here are two more:
Waters of the U.S. I: The EPA hasn't won a case broadening its regulatory authority, relative to the the Clean Water Act, since 1985. There have been nine water cases at the Supreme Court, with seven hinging on EPA or Army Corps of Engineers policies. The agencies have technically won in five cases, with four seen as opposed to greater environmental protections, such as the 2013 ruling upholding the EPA's position that discharges from logging roads don't require permits. The big 1985 win—United States v. Riverside Bayview Homes—was a unanimous ruling in a Michigan permitting case that bolstered federal power over interstate wetlands. But the impact of that ruling has since been blunted by other Supreme Court wetlands cases. All this looms large as the EPA works to finalize its "waters of the United States" proposal, which aims to clarify which streams, bogs, swamps and marshes fall within the agency's regulatory jurisdiction under the Clean Water Act. The EPA has said it will finalize the regulations in the next year in what would be one of President Obama's landmark environmental rules. The new EPA Clean Water Act rule proposal comes after two recent Supreme Court cases limited federal jurisdiction over wetlands and waterways, including the confusing 2006 decision in Rapanos v. United States. Rapanos failed to define clearly which bodies of water qualify for federal oversight. The Rapanos ruling highlights several reasons the EPA has struggled in water cases, including the water law's vague, undefined terms and property rights aspects that are easy for the Justices to grasp.*
Waters of the U.S. II: A new front has opened up in the battle over the regulatory reach of the Clean Water Act: mapping. House Science, Space and Technology Chairman Lamar Smith (R-TX) has released numerous maps provided to him by the EPA that he says "paint an astonishing picture" about the agency's regulatory proposal to increase the number of streams and creeks that receive automatic federal protection following years of confusion.