Thanks, EPA: Your New 'Navigable Waters' Rule Strengthens The Case Against Administrative Law

When Congress passed the Clean Water Act in 1972, it was exercising its power to regulate interstate commerce by prohibiting discharges into the nation’s “navigable waters.” If a body of water could be used to transport goods from one state to another, it was covered by the Act.

Like so many other statutes enacted over the last 80 years – that is, since the advent of the administrative state under FDR – the Clean Water Act (CWA) depends on bureaucratic interpretation and enforcement.
The two entities involved with the CWA are the Environmental Protection Agency and the Army Corps of Engineers. Both have tried to expand the scope of their regulatory power by issuing rules that defined “navigable waters” so broadly that they have (or at least claim to have) authority over many bodies of water that couldn’t possibly be used to transport so much as a paper clip between states.

Twice, the Supreme Court has slapped down rules that amounted to a rewriting of the law to suit the zealous regulators.

First, in Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (2001), the Court ruled that the Army Corps had no authority to assert control over isolated bodies of water – in that particular instance, an abandoned sand and gravel pit.

You might think that the lesson would have sunk in, but in 2006 the Court had to deal again with another creative interpretation of the CWA in Rapanos v. United States. The EPA had asserted that it could prevent a landowner from doing anything with a wetland that was near a ditch that eventually drained into navigable water. The Court again ruled that the agency had overstepped its bounds.

A crucial point here: When regulators lose court cases, it does not hurt them. Sure, they’re probably angry at being told “no” but that’s it. There are no penalties for grabbing unwarranted power and mistreating citizens. An adverse court decision, or even a series of them, has no deterrent effect. So it is not surprising that the EPA and Army Corps recently proposed a new rule defining “navigable waters” that, amazingly, actually goes far beyond its previous misbegotten efforts.

This new interpretation would, write Pacific Legal Foundation attorneys M. Reed Hopper and Todd Gaziano in a Wall Street Journal op-ed published last December, “redefine ‘waters of the United States’ so broadly that it covers virtually any wet spot – or occasionally wet spot – in the country, including ditches, drains, seasonal puddle-like depressions, intermittent streams, ponds, impoundments, prairie potholes, and large ‘buffer areas’ of land adjacent to every waterway.”

But there is a point here more fundamental than the pros and cons of this, or any, administrative regulation. Do we really want our laws to be made by unelected, unaccountable bureaucrats?

With the constant expansion of the regulatory state since the 1930s, Americans have gotten used to having to obey (although sometimes battle) rules decreed by those bureaucrats. It is a bad habit that we should break, argues Columbia Law School professor Philip Hamburger in his powerful book Is Administrative Law Unlawful?

His unequivocal answer is that it is unlawful.

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