Resolved: The United States Federal Government should pass Bill H.R. 4304

IntroductionThis debate is about the scope of the Clean Water Act (CWA). The CWA's stated objective is “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” To achieve its objective, the CWA prohibits "the discharge of any pollutant" -- defined to include "any addition of any pollutant to navigable waters from any point source" -- without a permit issued by the Army Corps of Engineers (Corps) or the Environmental Protection Agency (EPA). Currently, the CWA defines “navigable waters” as “the waters of the United States, including the territorial seas." The "waters of the United States" is undefined, and courts have defined it broadly to include not only traditional navigable waters but also waters that have a significant nexus with traditional navigable waters. This definition includes wetlands adjacent to traditional navigable waters, as long as there's a showing of a significant nexus with the traditional navigable water.H.R. 4304 proposes to change the definiton of "navigable waters" to waters that are "navigable-in-fact" or "permanent, standing, or continuously flowing bodies of water that form geographical features commonly known as streams, oceans, rivers, and lakes that are connected to waters that are navigable-in-fact." The bill explicitly excludes waters that "lack a continuous surface water connection to navigable waters," "man-made or natural structures or channels through which water flows intermittently or emphemerally," or "wetlands with a continuous surface connection to bodies of water that are waters of the United States." The bill also prohibits application of the "nexus test," so the EPA "may not use a significant nexus test... to determine Federal jurisdiction over navigable waters." This places severe limits on the authority of the Corps and EPA to regulate the "Nation's waters" under the CWA.The issue we're debating is whether limiting the Corps and EPA's power under the CWA is good or bad policy. I'll be arguing it's a bad policy. Instead, I propose a definition of "navigable waters" under which the authority of the Corps and EPA extends to the limits of congressional power to regulate interstate commerce. In effect, I'll be arguing for stronger environmental protection while my opponent argues for less environmental protection. I argue that "traditional navigability" isn't an appropriate test for environmental protection, so "navigability" should be understood as a technical term that simply refers to the limits of congressional power to regulate the Nation's waters. However, a quick clarification: I'm not saying the Corps and EPA should actually regulate the Nation's waters to the limits of interstate commerce. The issue isn't what the agencies should do with the authority given to them by Congress but rather how much power they should be given in the first place. I trust expert agencies like the Corps and EPA to perform cost-benefit analyses as required by the CWA and therefore to regulate the environment appropriately, not excessively. I prefer a comprehensive regulatory scheme that gives greater power to the Corps and EPA because it gives these agencies more flexibility and it limits potential loopholes in the regulatory program. This leads to better environmental regulations.Contention 1The scientific evidence shows that pollution of wetlands adjacent to traditional navigable waters threatens the water quality of the traditional navigable water. Any pollutant discharged into an adjacent wetland has the potential to move downstream and degrade the neighboring water body's quality. And this happens even when the two waters are separated by man-made dikes or barriers, natural river berms, beach dunes, and the like. In fact, even dams, which are specifically designed and constructed to impound large amounts of water effectively and safely, don't prevent all water flow, but rather allow seepage under the foundation of the dam and through the dam itself. [1] And even in the unlikely event that a particular wetland lacks any surface connection to a neighboring water body, a subsurface connection between the two is highly likely to exist. Below ground level, water tends to flow into a wetland from uphill areas and from a wetland to downhill areas. Such flow will typically connect wetlands with nearby waters, so these subsurface connections can have significant practical effects. [2] For instance, wetlands that have subsurface connections with downstream waters may serve as nutrient sinks that protect the quality of those waters even in the absence of a surface connection. [3] The more extensive the wetland, the greater its potential importance as a source of water to keep the navigable waterways full and clean. Thus, federal jurisdiction under the CWA should include any adjacent wetlands that are in reasonable proximity to other waters of the United States, because these wetlands are part of the aquatic system. Polluting these waters has effects on the entire water network, including on traditional navigable waters.[1] https://www.ferc.gov...[2] http://www.nap.edu...[3] http://www.nap.edu...Contention 2The CWA should give the Corps and EPA substantial discretion in deciding which waters fall under the CWA's coverage. Unlike Congress or the courts, these agencies possess technical expertise in environmental regulation generally and water regulations more specifically. Agency offiicals are thus better equipped to employ their own scientific knowledge and make their own interpretations about which waters the CWA should cover. The EPA is better-suited to determine the extent to which a river is navigable. Furthermore, giving these agencies greater discretion allows them to be more flexible, and to respond to the changing conditions of the Nation's waters and environment generally. Given potential impacts on the Nation's waters from climate change, it's absolutely necessary to give these agencies more flexibility, not less. As I said before, this doesn't mean the agencies will regulate to the full extent of the power given to them. Rather, it means the agencies will evaluate the science, and then reevaluate the science every year, and each year they'll be able to promulgate new regulations that best reflect new scientific data. Flexible regulatory schemes which give substantial discretion to expert agencies produce better regulations. When it comes to environmental regulations, and specifically to water regulations, it's extremely important to give agencies discretion because the environmental landscape is changing so rapidly from climate change, and the science is developing at a pace that requires that agencies constantly be reevaluate the regulations.Contention 3A case-by-case approach to defining navigability is better than a categorical approach that excludes a large number of the Nation's waters. Currently, the EPA employs a case-by-case approach which applies Justice Kennedy's "substantial nexus test" as developed in Rapanos. Justice Scalia's opinion in Rapanos said "navigability" requires permanent standing water or continuous flow. In other words, the proposed bill here is a reflection of Justice Scalia's opinion. Justice Kennedy's opinion argued for a substantial nexus test, which would allow for wetlands or waters that "significantly affect the chemical, physical, and biological integrity of other covered waters" to be considered navigable. Justice Kennedy thus allowed for a much broader interpretation of "navigability." Under this interpretation, the EPA and Corps must evaluate each water on a case-by-case basis, by applying the nexus test. This case-by-case approach gives the EPA and Corps greater flexibility and is thus better than the categorical approach advocated by Justice Scalia and the proposed bill. The case-by-case approach also has the potential to expand CWA protection for urban and western rivers, like the Los Angeles River. If you google the Los Angeles River, you'll recognize it as the gritty scene of car chases in tons of hollywood action films. The Los Angeles River is what it is today because the Corps said it wasn't "navigable." But recently, in 2010, the EPA finally declared it "navigable," by applying a case-by-case approach. And that's a positive development, becasue it acknowledges the reality of urban rivers as part of the Nation's waters. Establishing CWA protection for these rivers is absolutely necessary and critical.