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Wetlands Woes

Another day, another internal Bush administration memo suggesting that regulatory agencies aren't doing their jobs:

An official administration guidance document on wetlands policy is undermining enforcement of the Clean Water Act, said a March 4 memo written by the Environmental Protection Agency's chief enforcement officer.

The memo by Granta Y. Nakayama, EPA's assistant administrator for enforcement and compliance assurance, was obtained by the advocacy group Greenpeace and released yesterday by two House Democratic committee chairmen. It highlights the confusion that has afflicted federal wetlands protections since a 2006 Supreme Court decision.

The decision in question is Rapanos v. United States, a rather technical case in which the Supreme Court ruled that four Michigan wetlands that lie adjacent to drainage ditches (as opposed to natural bodies of water) didn't necessarily fall under the purview of the Clean Water Act. This illustrates one potential pitfall of case-by-case judicial incrementalism: It can be really confusing! Justice Kennedy, whose wrote a concurring opinion and cast the deciding vote in Rapanos, didn't give much guidance as to what types of wetlands the CWA reaches. The administration, to no one's great surprise, has construed Kennedy's opinion in a manner that exempts as many wetlands as possible. This seems like the kind of area where Congress, if it disagrees with the administration's take, might want to step in and pass legislation clarifying the scope of the CWA.

--Josh Patashnik