Counting the Hands on <i>Borden Ranch</i>
The federal permitting programs of the Clean Water Act (CWA) may be in for an overhaul, judging from a trio of CWA cases that has reached the U.S. Supreme Court in the past three years. The Court's attention to the CWA is welcome news to American farmers, developers, landowners, and state policymakers. During the lengthy hiatus following the Court's 1985 decision in United States v. Riverside Bayview Homes, Inc. (upholding §404(a) regulation of wetlands "adjacent" to "navigable waters"), the U.S. Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (EPA) expanded federal powers by hazarding ever-broader and less plausible readings of the Act. Environmental activists piled on with aggressive citizen suits in friendly judicial forums. The CWA began to look less like a law protecting the "navigable waters" by requiring permits for specified polluting activities and more like a general law regulating land and water use throughout the nation. Escaping the Court's scrutiny, federal agencies managed to displace a broad array of traditional state and local powers. But the tide appears to have turned. The Court has granted in quick succession three certiorari petitions challenging broad interpretations of the scope of the CWA's permitting programs: Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, Borden Ranch Partnership v. U.S. Army Corps of Engineers, and South Florida Water Management District (SFWMD) v. Miccosukee Tribe of Indians of Florida. It seems the Court has recognized that the CWA implemented by regulators and activist judges is unfaithful to the U.S. Congress' original vision.