Are "thousands of the nation’s largest water polluters outside the Clean Water Act"? No!

19 Mar 2010

A recent article in the New York Times touted that “thousands of the nation’s largest water polluters are outside the Clean Water Act’s reach because the Supreme Court has left uncertain which waterways are protected by that law.”

The problem with the premise of the article is that it assumes away: (1) all state environmental regulation; (2) federal regulations relating to the handling of hazardous substances and wastes; and (3) the Court’s own statement that its opinion was limited to “the discharge of “dredged or fill material”—which, unlike traditional water pollutants, are solids that do not readily wash downstream—that we consider today.”  The Court itself did not address “traditional water pollutants” because it recognized that they were substantially different than chemicals and wastes which were more migratory than fill dirt.

Also,  the EPA will not concede that they have no regulatory authority on intermittently dry canals or isolated lakes.  The only actions the Rapanos decision immunizes is the placement of fill soils in, or clearing from, a wetland: (1) adjacent to a channel that contains a “water of the United States” where the wetland has an intermittent surface connection with the channel, making it easy “to determine where the ‘water’ ends and the ‘wetland’ begins”; and (2) there is only a speculative or insubstantial nexus between the wetlands and navigable waters, where the wetlands either alone or in combination with similar lands in the area, do not “significantly affect the chemical, physical and biological integrity” of other “navigable” waters.  Even then, only federal jurisdiction under statute would be affected.  For example, this logic would not allow the dumping of hazardous wastes in either uplands or wetlands.  This attempt at hysteria based on a 3 and a half year old decision is ill conceived and ill supported.

Leave a Comment to “Are "thousands of the nation’s largest water polluters outside the Clean Water Act"? No!”

  1. Mark Winter 23. Mar, 2010 at 8:16 am #

    This is really great

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