Post-Sackett, Who Will Speak for the Clean Water Act?

Earlier this month, in Lewis v. United States the 5th Circuit issued a decision interpreting the Supreme Court’s decision in Sackett v. EPA.  The 5th Circuit decision is a model of clarity and demonstrates what I’ll call the good side of Sackett.  And clarity is definitely the right word here.  One might say clarity is the holy grail that critics of EPA’s and the Corps’ efforts to interpret WOTUS have focused on.

Stamford, CT, USA – November 18, 2012: “The Lorax” balloon is one of the many hot air balloons participating in the city of Stamford annual “Thanksgiving Day Parade” held in the downtown area of the city. Since the first parade in 1993 with only a few hundred spectators the parade has become the country’s second largest annual event now attracting well over 100,000 of the city citizens and those from the surrounding towns

I largely represent private interests in these matters and I fully get the importance of clarity in investment decisions.  Moreover, one would have to be fairly hard-hearted, reading the background to the Lewis decision, not to sympathize with the plight of Garry Lewis with regard to his efforts to develop his property.  It’s a short history of everything people love to hate about government bureaucracy.

However, now that we have Sackett, and Lewis, and with a nod to Dr. Seuss, I’d like to ask, “Who speaks for the Clean Water Act?”  After all, certainty with respect to CWA jurisdiction is hardly the sole interest the government is trying to protect here.  When the Federal Water Pollution Control Act was amended in 1972, creating the Clean Water Act as we know it, overwhelming majorities in both the House and Senate voted in favor, and without doubt they identified another type of certainty as paramount – certainty that we would stop polluting our nation’s waters and instead get them cleaned up.

It’s worth noting that the permitting program established by the EPA to implement the CWA is – still – known as the National Pollutant Discharge Elimination System.  In case anyone failed to notice, the “E” in NPDES stands for “Elimination”.  Even as a callow law student, I recognized that we hadn’t eliminated and weren’t really planning to eliminate all polluting discharges.  At the same time, however, it’s fairly clear that that’s what Congress had in mind.

Similarly, I haven’t seen any cogent arguments that the science behind the Obama administration WOTUS rule was significantly flawed in any way.  To the contrary, that science makes clear that one result of the Sackett decision is going to be significant further degradation of our nation’s waters.

It seems likely that, if Sackett had been decided in 1973, Congress would quickly have amended the CWA to overrule the meaning of WOTUS provided in Sackett.  One hopes that Congress would have done so in a way that provided some clarity and certainty to property owners, but there’s little doubt that Congress would have provided greater protection to the nation’s waters than is provided by Sackett.

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