U.S. Water News Online
WASHINGTON -- The U.S. Supreme Court has heard arguments
over the reach and constitutionality of the Clean Water Act, setting
the stage for a potentially historic verdict on property rights and
"The Clean Water Act represents a view of environmental policy
that tramples property rights, centralizes regulatory authority and
crowds out private efforts to safeguard local environmental quality,"
said Competitive Enterprise Institute Counsel for Special Projects
Signed into law by Richard Nixon in 1972, the Clean Water Act made
it illegal to discharge pollutants into "navigable waters" without a
permit. In subsequent years, federal regulators interpreted that
prohibition to apply to small streams, low-lying wetlands and even
dry creek beds which clearly do not meet the definition of
"navigable." The cases before the Supreme Court are challenging the
extension of the Act's authority to these areas, which are often many
miles from actual open waterways.
The Government relies on an incredibly far-reaching "hydrological
connection" theory. If a parcel of land contains water that is
"hydrologically connected" to open waterways, it is deemed to be in
"navigable waters," no matter how tenuous the connection is. Of
course, all water flows downhill, and thus is "hydrologically
connected" to navigable waters. The Government's theory thus gives it
boundless power over much of the continental United States, including
millions of acres of mostly dry land that it redefines as wetlands.
"The Government's use of attenuated links between parcels of land
and distant waterways to regulate such land as 'wetlands' violates
the Constitution" said Bader, citing the Supreme Court's 2000
decision limiting federal powers in United States v. Morrison, a case
which he helped litigate.
"The government is defending its expansive definition of wetlands
based on the Interstate Commerce Clause, saying wetlands affect
interstate commerce. But the Morrison decision held that an
activity's 'attenuated effect upon interstate commerce is not enough'
to justify federal regulation, even if it has a major but indirect
'aggregate effect' on the economy. Instead, the Supreme Court held
there must be a close, 'substantial relationship' between what the
government is regulating and interstate commerce. There isn't any
'substantial relationship' between land next to a drainage ditch and
interstate commerce, yet that is the land the government wrongly
sought to use the Clean Water Act to control in this case."
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