The story of the Clean Waters Act is a perfect example of the administrative state seizing total power that it was never intended to have.
The old 70’s legislation protected “navigable waters” also known as “waters of the United States”. The EPA’s bureaucrats and eco-leftists decided to take the latter definition to mean all the water. Literally.
Got a puddle in your backyard? The EPA has authority over it. Or had authority.
The Supreme Court ruled that “waters refers only to “geographic[al] features that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes’ ” and to adjacent wetlands that are “indistinguishable” from those bodies of water due to a continuous surface connection.”
Wetlands are not navigable waters at all, but at least this curtails the escalating Obama/Biden abuses of the CWA.
The SCOTUS ruling states that, “to assert jurisdiction over an adjacent wetland under the CWA, a party must establish “first, that the adjacent [body of water constitutes] . . . ‘water[s] of the United States’ (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”
In short, the EPA can’t simply claim that all water is connected and any water on your property will eventually make its way to a navigable body of the water and so it can tell you not to build on your own land.
Justice Alito casually takes apart the EPA’s argument.
“The EPA argues that ‘waters’ is ‘naturally read to encompass wetlands’ because the “presence of water is ‘universally regarded as the most basic feature of wetlands.’”
He points out that, “it is also instructive that the CWA expressly ‘protect[s] the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution’ and ‘to plan the development and use . . . of land and water resources.'”
“It is hard to see how the States’ role in regulating water resources would remain ‘primary’ if the EPA had jurisdiction over anything defined by the presence of water.”
There is no possible response to this. The EPA chose to ignore the law to seize power, as the administrative state often does.
“Field agents brought nearly all waters and wetlands under the risk of CWA jurisdiction by engaging in fact-intensive ‘significant-nexus’ determinations that turned on a lengthy list of hydrological and ecological factors.”
This is part of a pattern.
Justice Alito notes also that the “’migratory bird rule,’ which extended jurisdiction to any waters or wetlands that ‘are or would be used as [a] habitat’ by migratory birds or endangered species. See 53 Fed. Reg. 20765 (1988); 51 Fed. Reg. 41217 (1986). As the Corps would later admit, ‘nearly all waters were jurisdictional under the migratory bird rule.’”
The EPA’s authority over your puddles have been rolled back, but nearly every other good SCOTUS decision involves some sort of idiotic dissent by Kavanaugh or Gorsuch, and this is no exception with Kavanaugh writing a dissent complaining that the decision dismantles the CWA when what it actually does is reaffirm the actual law while rolling back the power grab of the administrative state.