Every now and then it helps when you are working on something to see what happened with other things like it. As Congress, the commercial space industry, and lobbyists contemplate legislation for non-traditional private actors in outer space, it may be wise to revisit the perils of imprecision.
Look what happened to the “navigable waters of the United States” in the hands of the U.S. Army Corps of Engineers. They grew some. The Supreme Court did a fine job of describing a regulator’s first shy, then creeping, then galloping jurisdictional expansion over the course of five Presidential administrations in Rapanos v. United States by expanding what “navigable waters” mean.
The Clean Water Act requires a permit to discharge a pollutant into navigable water. Justice Scalia, with his usual verve, described the predicament that Mr. Rapanos faced starting in April 1989, when Mr. Rapanos
backfilled wetlands on a parcel of land in Michigan that he owned and sought to develop. This parcel included 54 acres of land with sometimes-saturated soil conditions. The nearest body of navigable water was 11 to 20 miles away. Regulators had informed Mr. Rapanos that his saturated fields were “waters of the United States,” 33 U. S. C. § 1362(7), that could not be filled without a permit. Twelve years of criminal and civil litigation ensued.
In deciding whether to grant or deny a permit, the U. S. Army Corps of Engineers (Corps) exercises the discretion of an enlightened despot, relying on such factors as “economics,” “aesthetics,” “recreation,” and “in general, the needs and welfare of the people,” 33 CFR § 320.4(a) (2004). The average applicant for an individual permit spends 788 days and $271,596 in completing the process, and the average applicant for a nationwide permit spends 313 days and $28,915—not counting costs of mitigation or design changes.
The enforcement proceedings against Mr. Rapanos are a small part of the immense expansion of federal regulation of land use that has occurred under the Clean Water Act—without any change in the governing statute—during the past five Presidential administrations.
One of the statute’s principal provisions is 33 U. S. C. § 1311(a), which provides that “the discharge of any pollutant by any person shall be unlawful.” “The discharge of a pollutant” is defined broadly to include “any addition of any pollutant to navigable waters from any point source,” § 1362(12), and “pollutant” is defined broadly to include not only traditional contaminants but also solids such as “dredged spoil, . . . rock, sand, [and] cellar dirt,” § 1362(6). And, most relevant here, the CWA defines “navigable waters” as “the waters of the United States, including the territorial seas.” § 1362(7).
(Most citations and page numbers omitted).
At first the Corps was becomingly modest in its approach, and interpreted “navigable waters” in the ordinary way, as “interstate waters that are ‘navigable in fact’ or readily susceptible of being rendered so.” We might, perhaps, think back to steam boat captains in days of yore asking each other whether a stretch of the Mississippi was navigable or whether they’d run aground on sand bars.
Instead, as Justice Scalia informed us:
After passage of the CWA, the Corps initially adopted this traditional judicial definition for the Act’s term “navigable waters.” After a District Court enjoined these regulations as too narrow, the Corps adopted a far broader definition. The Corps’ new regulations deliberately sought to extend the definition of “the waters of the United States” to the outer limits of Congress’s commerce power.
The Corps’ current regulations interpret “the waters of the United States” to include, in addition to traditional interstate navigable waters, 33 CFR § 328.3(a)(1) (2004), “[a]ll interstate waters including interstate wetlands,” § 328.3(a)(2); “[a]ll other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce,” § 328.3(a)(3); “[t]ributaries of [such] waters,” § 328.3(a)(5); and “[w]etlands adjacent to [such] waters [and tributaries] (other than waters that are themselves wetlands),” § 328.3(a)(7). The regulation defines “adjacent” wetlands as those “bordering, contiguous [to], or neighboring” waters of the United States. § 328.3(c). It specifically provides that “[w]etlands separated from other waters of the United States by manmade dikes or barriers, natural river berms, beach dunes and the like are `adjacent wetlands.'” Ibid.
Lesson One: don’t rely on the name of the term if that’s what you really mean. That broad definition of navigable waters as “waters of the United States” allowed the Corps endless leeway in interpreting what was meant by “navigable waters.” The word “navigable” in the name didn’t limit the waters to those that could actually be navigated. My own suspicion is that the drafters didn’t mean to include water in prairie potholes. If I’m right, the better place for “navigable” would have been in the definition than in the name.
Lesson Two: don’t forget that there are other actors out there who will influence the interpretation of the language you have crafted. It was the courts who pushed the Corps toward a more expansive approach. The Corps went with it. How did the courts become involved? I would imagine an environmental group sued the Corps and won. That broad definition gave the Corps all the room it needed to extend its reach.
Lesson Three: don’t rely on the present occupants of an agency to be there forever. Write as if the future depended on it. “Navigable waters” grew to include water in prairie potholes, even though no one’s going to get a rowboat in a pothole, much less a steamboat. These changes took place over decades, but that broad definition provided the tools for the expansion from the outset. Although the Supreme Court finally set some limits on the Corps’ reach, it took Mr. Rapanos a long time and a lot of money to be rescued.
Note for the non-lawyers: The laws Congress writes go in the United States Code (USC). When regulatory agencies such as the Corps or the Federal Aviation Administration issue their requirements in accordance with the law Congress wants them to administer, the agencies locate their regulations in the Code of Federal Regulations. If there is a conflict between the United States Code and the Code of Federal Regulations, the United States Code wins because the Constitution vests the power to make laws in the Congress. The regulatory agencies are in the Executive Branch, and are merely carrying out the directions Congress supplied through the United States Code.