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Navigable Waters

DID YOU ever dream of running a boat in a stream on your farm or in a small wet weather pond? No, I'm sure you didn't — but the EPA and Corps of Engineers seem to think you could. Under the Clean Water Act (CWA) they call most of these “navigable waters of the U.S.” Almost any stream or wetland or pond which eventually feeds into rivers (navigable waters) is included. The regulations now in effect have extended this definition to include “dredge and fill operations” under Section 404 of the CWA. Only a recent court decision removed ponds on which migratory birds might land from regulation.

The CWA forbids discharge of a pollutant (much argument over just how far the definition of “pollution” goes) into “navigable waters” without obtaining a permit from the Corps of Engineers. The act exempts “normal farming and ranching activities that do not impair the flow or circulation of navigable waters.

The Environment and Climate News accurately described the situation as follows: “EPA and the Army Corps have consistently defined the term “navigable waters” to mean not just navigable waters themselves, but any tributaries of navigable waters, swamps and wetlands in the general vicinity of navigable waters, and many isolated swamps, wetlands, creeks, and small depressions that hold water only occasionally.”

EPA and the Army Corps additionally have defined “pollutant” to include rocks, sand, dirt, and even incidental redepositing of loosened soils back to the same place they came from.

The Supreme Court deemed all this word-smithing to be an overstepping of statutory authority, ruling in 2001 that the Army Corps had no Clean Water Act justification for forbidding an Illinois landowner from filling in an abandoned sand and gravel pit with landfill materials. The Corps had argued that a scattering of ponds had collected on the abandoned mine property; that migratory birds occasionally visited the ponds; and that the birds significantly affected interstate commerce. The Court ruled the presence of migratory birds does not transform an isolated wetland into navigable waters subject to the Clean Water Act; the commerce clause, the court said, does not apply to non-economic activity within a state's borders.”

EPA and the Corps of Engineers have extended their reach to include any disturbance of even an isolated wetland. The Supreme Court threw out these efforts — leaving the federal government no way to require permits under Sect. 404 of the CWA where wetlands and small streams are covered.

Another attempt in the courts in 2002 obtained a curious ruling that a farmer plowing his field to allow root growth in an orchard might be subject to a permit. Fortunately, the court deadlocked 4-4 with one abstention.

EPA now has asked for comments by the public as to what the extent of federal CWA jurisdiction should be. In January 2003 the government issued a set of “guidelines” which once again attempted to extend federal jurisdiction. Both developers and environmentalists, for opposite reasons, oppose these guidelines.

We understand that due to the conflicts in this political year, EPA has decided not to push for further clarification and not even impose the guideline it set forth. Major confusion reigns. As more and more lawsuits are filed with circuit courts of appeal giving varying opinions, the Supreme Court is being urged once more to weigh in and issue definitive guidance which thus far, it has been reluctant to do.

It has several cases pending should it accept one of them for review. Rep. John Duncan (R-TN), who chairs a key House environmental panel has filed his own “Amicus” brief urging the court to take action. His approach, which we support, says that the CWA's intent was only to control truly navigable waters and is limited to just that — no authorization is given expressly or implied to extend to non-navigable waters, streams and wetlands.

We'll just have to wait and see what happens. Eventually the government will find some way to control dredge and fill operations. For now it's up to the individual states.

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