Last December the Trump administration, in a move that received only fleeting attention amid a cascade of high profile news stories, took steps to subvert the intent of one of the most effective laws enacted in the 20th century. The administration proposed sweeping rule changes to the Clean Water Act (CWA) that would open to development an estimated 50 to 80 percent of the nation's wetlands, an enormously valuable resource that provides storm protection, pollution filtration, and essential wildlife habitat.
The current controversy arguably started in 1989 when a developer named John Rapanos decided to place a shopping mall on a large tract of land he owned in Midland, Mich. The investigation I conducted for the U.S. Environmental Protection Agency's Criminal Investigations Division revealed that Rapanos was informed by state officials that he could not alter the site until a study was completed to determine the extent of protected wetlands on the property. Rapanos hired a respected wetlands expert who delivered a detailed map and report showing that fifty acres were, in fact, wetlands that could not be developed without a permit. Enraged, Rapanos demanded that the report be destroyed and threatened to sue if the consultant reported his findings to authorities. Salivating at the prospect of a huge payday from a Texas development company, the defiant Rapanos proceeded to level and fill the site, which was connected by ditches and creeks all the way to Lake Huron. Eventually the consultant agreed to cooperate with the investigation, and Rapanos was indicted on two felony violations of the CWA. He was found guilty in 1995 on both counts.
Meanwhile, he had filled two other wetland sites, which prompted further legal action and large fines by the civil division of the EPA. Rapanos filed appeals, but the courts consistently ruled that the definition of protected waters of the United States utilized by the U.S. Army Corps of Engineers was reasonable. In 2005, ten years after his criminal convictions, the case arrived at the Supreme Court.
When congress passed the CWA in 1972, they made it clear in documents accompanying the legislation that they supported “the broadest possible constitutional interpretation” of protected waters of the United States. As Sen. Howard Baker (R-Tenn.) said at the time, “The once seemingly separate types of aquatic systems are, we now know, interrelated and interconnected. We cannot expect to preserve the remaining qualities of our water resources without providing appropriate protection for the entire resource.”
Yet Justice Antonin Scalia, joined by four other members of the Supreme Court, vacated the decision of the lower courts in the Rapanos case. Scalia issued an opinion that the scientifically developed definition of “waters of the United States” used by the Corps was too broad. Ignoring Supreme Court precedent, congressional intent, aquatic science, and common sense, Scalia argued that protected waters of the United States must have a continuous surface connection to larger bodies of water, an interpretation so narrow that it would have removed protected status from a huge swath of the nation's wetlands and streams.
While Scalia's attempt to rewrite the law makes for interesting reading, the text of the CWA contains no language to support his claim that there must be a “continuous surface connection” for wetlands to qualify for protection. Legislators intentionally avoided a narrow definition in deference to the scientists and experts at the Army Corp of Engineers, who were tasked with overseeing the permitting process for activities that could impact waters. As recently as 1985 the Supreme Court had upheld the protection of “adjacent wetlands,” many of which did not have continuous surface connections to other waters. Stymied by his own lack of expertise in the science of wetlands and aquatic ecosystems, Scalia tried to simplify an enormously complex issue, at one point citing the definition of “water” found in Webster's dictionary to justify his position.
Fortunately, five justices disagreed with Scalia's interpretation of what constitutes protected waters. Four of them ruled that the government had acted reasonably in the Rapanos case. A fifth, Justice Anthony Kennedy, while concurring that the case be remanded to the district court for review, disagreed strongly with Scalia, arguing that even wetlands that did not have a continuous surface connection to larger bodies of water should be protected under the Act if they possessed a “significant nexus” to those waters.
Since 2006 the EPA and the Corps have continued to regulate the development of wetlands consistent with this relatively broad “significant nexus” interpretation.
But Donald TrumpDonald TrumpYoungkin ad features mother who pushed to have 'Beloved' banned from son's curriculum White House rejects latest Trump claim of executive privilege Democrats say GOP lawmakers implicated in Jan. 6 should be expelled MORE is now insisting that Scalia's minority view be the operating law of the land. In announcing the proposed changes, EPA Administrator Andrew Wheeler declared: “Property owners should be able to stand on their property and be able to tell if a water is federal or not without hiring outside professionals.”
Consider the implications of such a policy — allowing developers like John Rapanos to decide for themselves whether their land is subject to the provisions of the CWA.
This nation tried voluntary compliance and a patchwork of ineffective state laws prior to the 1970s. It failed miserably, resulting in contaminated rivers and lakes across the nation, which is why the CWA was enacted in the first place. Anyone who cares about preserving the nation's waters can only hope that legal challenges will stop Trump's proposal in its tracks.
Bruce P. Kading retired as Chief of Fraud Investigations at the Chicago office of the INS after 21 years in government service, including more than four years as a Special Agent with the U.S. Environmental Protection Agency, Criminal Investigations Division; he is now a freelance writer and author of the novel Miguel’s Gift, published by the Chicago Review Press.