The EPA clarifies the Clean Water Act

Reuters reports that the Environmental Protection Agency has worked with the Army Corps of Engineers to rewrite the guidelines that cover which waters will be subject to the provisions of the Clean Water Act. The guidelines, while extensive, can basically be summed up as follows: the Clean Water Act can be taken to apply to bodies of water large enough for boats to use.

The EPA's decision is highly controversial at least in part because the guidelines were prompted by a Supreme Court ruling that did virtually nothing to settle the key dispute at the heart of the law. In a 4-4 decision with Justice Kennedy striking out on his own to further obscure the ruling, the Court held that lower courts will need to decide on a case by case basis what waterways the law applies to.

The confusion on what waters the law applies to is completely driven by the central division on the court today. The strict constructionists hold that the Constitution only gives the Federal government jurisdiction in specific enumerated areas covered in the document itself and its subsequent amendments. The downside of this approach however, is that while the strict interpretation provides a very clear view of what is Constitutional and what is not, it also results in a significantly less powerful Federal government. This is a problem because the Federal government literally defined by the Constitution simply doesn't have jurisdiction to do things that a lot of people would really like to get done. The loose constructionists on the other hand are much more willing to read things into the law in order to get outcomes that are more palatable. The difficulty with the loose constructionist view is that the law becomes unpredictable if it can mean things that aren't actually in its text.

The issue with the Clean Water Act isn't going to go away anytime soon, as Democrats are already planning to update the law specifically in order to regulate small creeks and estuaries that the EPA has chosen not to cover. Nothing the Democrats do is likely to satisfy four of the nine justices, but maybe Justice Kennedy can be convinced to take a side on this important issue.