Fox is accusing the Environmental Protection Agency of a “power grab” for proposing a rule to clarify the jurisdiction of the Clean Water Act. In fact, the new classification is based on sound science and intended to address years' worth of confusion surrounding the proper protection of the nation's waterways.
Newly-proposed guidelines would allow “greater consistency, certainty, and predictability nationwide by providing clarity in determining where the Clean Water Act (CWA) applies,” per the EPA, specifically by incorporating recent research on the extent to which small streams and wetlands connect to larger bodies of water downstream. That research, which is under review by the EPA's Science Advisory Board, found that small streams, even those that only flow at certain times, “are connected to and have important effects on downstream waters,” and that wetlands are similarly integrated, making them subject to CWA protection.
That is, unless you ask Fox News and Fox Business. This week, the networks have adopted the complaints of GOP lawmakers to claim that the EPA is only using the study to justify a “power grab.” Lou Dobbs claimed on his show that the clarified jurisdiction represented “unprecedented control over private property” -- “maybe” extending to “mud puddles.” And Fox News legal analyst Andrew Napolitano baselessly asserted on Fox & Friends that the study is “bogus” -- merely a rationalization to “regulate all bodies of water” and “control more behavior.”
Despite these claims, the new EPA study did not provide the basis for regulating “all bodies of water” (or “mud puddles”). It found that the EPA and U.S. Army Corps of Engineers could evaluate small streams on a case-by-case basis to determine their impact downstream. The rule is necessary because the parameters of the CWA are currently quite muddled, as even conservative critics and industry lawyers have noted in the past. This process is in keeping with the March 2013 decision in Decker v. Northwest Environmental Defense Center, which re-affirmed nearly unanimously that federal agencies are granted a wide berth in interpretations of their own rules.
Napolitano vastly oversimplified the legal precedent of the issue, suggesting that the Supreme Court previously limited the definition of protectable waters to those connected to “navigable waters,” a classification that is now allegedly being undermined. Actually, according to E&E News, the 2006 Supreme Court case Rapanos v. United States, which ended in a split decision, resulted (sub req) in dual definitions of waterways subject to the CWA. One, from Justice Antonin Scalia, defined protected wetlands as those “with a continuous surface connection” to navigable water. But Justice Anthony Kennedy classified waters subject to the Act much more broadly, stipulating only that they must have a “significant nexus” with navigable waters, such that they “significantly affect the chemical, physical, and biological integrity of other covered waters.” To lower judges, it was unclear who was speaking on behalf of the court (let alone how to decide which streams or wetlands met each qualification). In short, it was never decided in definitive terms which bodies of water fall under the rubric “Waters of the United States,” which was given as the original CWA definition of “navigable waters” (though some have cited a “consensus [...] that the significant nexus test applies”). This split led to years of disorder. Many lawyers agree that the Supreme Court “bungled” the 2006 case, producing “confusion” where it was supposed to provide clarity. Even some who favor Scalia's designation, like a lawyer from the conservative Pacific Legal Foundation who ostensibly won the 2006 case, have said the “lack of clarity” around CWA jurisdiction is a major issue.
As Napolitano noted, in the wake of the decision, hundreds of CWA enforcement cases were allegedly stalled or dropped entirely. However, he left out the fact that corporate interests reportedly (sub req) pushed the Bush administration to drop the cases. Contrary to claims that the new process clarifying CWA jurisdiction has been “rushed,” it is a response to years of legal ambiguity that caused many bodies of water to slip through the cracks. Natural Resources Defense Council attorney Jon Devine told Bloomberg's Water Law & Policy Monitor that a new rule informed by the recent study would “remedy the current approach to law enforcement, for instance, where officials have largely abandoned efforts to enforce the law in the headwaters of watersheds.”
Furthermore, these small and intermittent bodies of water are vitally important. Surveys have shown that about 117 million people in the continental United States rely in part on drinking water connected to “intermittent, ephemeral, or headwater [river source] streams”:
In an email statement to Media Matters, the EPA stated that the jurisdictional changes “are necessary to reduce costs and minimize delays in the permit process and protect waters that are vital to public health, the environment and economy. The process for making these improvements will be transparent, based on the best available science, consistent with the law, and include the opportunity for public input.”