Tuesday, June 3, 2008
The federal Clean Water Act has long served as a thorn in the side of land developers, in large part because construction work that dumps soil or fills in a stream or wetland can be considered a form of water pollution that is regulated by the Act and, if even allowed, requires a federal permit. These land use complaints have reached the Supreme Court, which in recent years has issued two opinions that narrowed the reach of the Act (with Justice Scalia calling the government an “enlightened despot”) –- except that the Court’s fractured rulings did not result in any new clear statutory delineation.
In an application that may be the most contentious yet after the latest ruling, the U.S. Army of Corps of Engineers (which issues the permits for the dumping of “fill” material) reportedly has written a draft decision that excludes Clean Water Act coverage for many tributaries of the Los Angles River, the intermittent river (like most in southern California, of course) that reaches the Pacific after running though concrete beds in the city of angels.
The complicated legal issue has many parts, but the most significant comes in applying the Act’s lynchpin term “navigable waters.” In part because it was defined by Congress to include the term “waters of the United States,” just about everyone agrees that the term can’t be defined simply by asking “Can boats navigate on it?” Yes this question seemed to play a large role in the Corps’ tentative decision. The reasoning seemed to be that because the L.A. River itself isn’t navigable by boats, its tributaries can’t be covered by the Act. But even the most restrictive of the opinions (Justice Scalia’s) in the most recent Supreme Court decision (Rapanos v United States, 547 U.S. 715 (2006)) stated that “navigable waters” includes “streams.” And shouldn’t the fact that the L.A. River reaches the Pacific Ocean (which is navigable by boats, of course) cover all tributaries whose waters eventually flow to the ocean? The fact that the L.A. River may be dry for much of the summer also seems to be to be largely irrelevant, to me, as pollution that sits in dry beds in summer will likely move rapidly downstream after winter rains.
To me, the only sensible way to approach the question of regulating water pollution is to ask: Is the dumping of pollutants likely to work its way into water bodies at some point in the future? If yes, it should be considered water pollution, and land use developers should have to deal with pollution regulation.