Posted by Jonathan Adler:
Does the Clean Water Act Need to Be "Restored"? A Debate:
http://volokh.com/archives/archive_2009_03_22-2009_03_28.shtml#1237862441
This Thursday I will be in Boston to participate in a panel discussion
on whether the Congress should enact legislation to "restore" the
Clean Water Act in response to the Supreme Court's decisions in
[1]SWANCC v. Army Corps of Engineers and [2]Rapanos v. United States.
Other panelists will include Reed Hopper of the Pacific Legal
Foundation, Patrick Parenteau of the Vermont Law School, and
Christopher Kilian of the Conservation Law Foundation. Here's the
panel description:
In the 2006 plurality decision in Rapanos v. United States, the
Supreme Court limited the scope of the Clean Water Act�s protection
of �navigable waters� to only include those bodies of water that
are �permanent, standing or continuously flowing,� and thus did not
apply to channels through which water flows only some of the time.
A concurring opinion by Justice Kennedy held that Clean Water Act
jurisdiction extended only to those wetlands and waters with a
�significant nexus� to navigable waters. Substantial litigation and
regulatory uncertainty followed in the wake of the Rapanos
decision, as courts, regulators, and private landowners sought to
identify the statutory limits of federal regulatory authority. In
response to Rapanos and the resulting regulatory uncertainty,
Representative James Oberstar (D-MN) introduced the Clean Water
Restoration Act. According to the Congressman�s website, this
legislation would �fix the Clean Water Act.� The legislation, if
enacted, would significantly expand federal regulatory authority
over waters and wetlands and would allow the Environmental
Protection Agency and the U.S. Army Corps of Engineers to enforce
the Clean Water Act on wetlands, streams and ponds that are
unconnected to any a major navigable waterway. Is such legislation
sound policy? Would the Clean Water Restoration Act provide
regulatory uncertainty or enhance environmental protection? Or
would it create further regulatory nightmares for private
landowners? Is Congress likely to consider this legislation during
its current session? If so, is the Obama Administration likely to
support it?
Further details and reservation information are [3]here.
I testified at a [4]House Transportation Committee hearing on the
proposed "Clean Water Restoration Act" last spring, and blogged on the
proposal [5]here and [6]here.
References
1. http://www.law.cornell.edu/supct/html/99-1178.ZS.html
2. http://www.law.cornell.edu/supct/html/04-1034.ZS.html
3. http://www.fed-soc.org/events/id.1328/event_detail.asp
4. http://transportation.house.gov/hearings/hearingDetail.aspx?NewsID=486
5. http://volokh.com/posts/1208351437.shtml
6. http://volokh.com/posts/chain_1188955628.shtml
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