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

OverviewI suggest weighing the debate by evaluating (1) who best furthers the the CWA's stated objective ("to restore and maintain the chemical, physical, and biological integrity of the Nation's waters"), and (2) who supports better regulations generally. I've shown that defining "navigable waters" broadly to include adjacent wetlands furthers the CWA's stated objective better than H.R. 4304. I've also shown that my definition promotes better regulations generally because of its greater flexibility, and because it gives substantial discretion to agencies who possess more technical expertise than Congress.Pro drops C1. Specifically, Pro drops that the scientific evidence shows that polluting adjacent wetlands has effects on the entire water network, including traditional navigable waters. This shows that regulating adjacent wetlands is just as essential to the CWA's stated objective as regulating the traditional navigable waters. Pro also drops C2 and C3. These contentions show that the Corps and EPA should be given substantial discretion because of their technical expertise (Pro drops this) and because it leads to flexible regulations (Pro drops this too). Finally, Pro drops that evaluating waters on a case-by-case basis is better than a categorical rule because it gives the EPA and Corps greater flexibility.What are Pro's counter-arguments? Pro cites two Supreme Court cases, SWANCC and Rapanos. In SWANCC, the Supreme Court held that the "migratory bird rule" exceeded the Corps and EPA's authority under the CWA. The "migratory bird rule" is the idea that purely *isolated* waters (including wetlands) fall under the CWA as long as migratory birds use the waters. Under the CWA's current definition, without any modification, the "migratory bird rule" doesn't apply. SWANCC is actually a reason to prefer my alternative to the proposed bill, because under SWANCC, the CWA already doesn't cover isolated wetlands used by migratory birds. Thus, the proposed bill has no impact in relation to the "migratory bird rule."Pro also cites Rapanos. In Rapanos, the Supreme Court held that all waters with a "significant nexus" to "traditional navigable waters" are covered under the CWA. The specific wetland in Rapanos was 20 miles from the neareest waterway. The Court held that such a wetland doesn't pass the "significant nexus" text. Justice Scalia's plurality opinion suggested that the law be changed to only cover traditional navigable waters, as in H.R. 4304. But the operative law in Rapanos is found in Kennedy's concurrence, which applied the "significant nexus" test and found that the specific wetland at issue, which was 20 miles away from a traditional navigable water, didn't meet the test. Scalia preferred a categorical rule that would exclude all wetlands; Kennedy preferred a case-by-case evaluation of waters. As I've said throughout this debate, a case-by-case approach allows greater flexibility, and gives more discretion to expert agencies, which in turn produces better regulations. Overall, the Supreme Court (with the exception of Scalia) agrees with that. Pro doesn't give any reason to prefer a categorical approach to regulating the Nation's waters. Flexibility, and greater discretion to technical experts, are both reasons to prefer a case-by-case approach.Again, let me emphasize that Pro dropped the scientific evidence entirely. And the scientific evidence shows that polluting adjacent wetlands affects the entire water network when those wetlands have a "significant nexus" to the navigable water. In fact, the scientific evidence even shows effects on navigable waters when there's no surface connection between the two. As I explained in R2, water tends to flrow from wetlands into downhill areas below ground level, which will affect nearby waters downstream. And remember, I gave the example of wetlands with subsurface connections to downstream waters which serve as nutrient sinks, which thus protects the quality of downstream waters even in the absence of a surface connection. Regulating these waters furthers the CWA's objectives, and produces better regulations via increased flexibility, greater discretion to technical experts. Each of these reasons means better regulations. Thus, prefer my alternative to H.R. 4304 because it produces better regulations, better protects the Nation's waters, and better furthers the CWA's goals.RebuttalPro argues two things: (1) Commerce Clause, and (2) Ordinary Meaning (I'm not sure what else to call this argument).(1) Commerce ClausePro says the bill limits what the EPA can regulate specifically to "what goes across state borders." First, this isn't true. Second, even if it were true, that doesn't matter, because Congress has authority under the Commerce Clause to regulate purely intrastate activities as long as those activities (a) have a substantial affect on interstate commerce, or (b) regulating these activities is essential to a comprehensive regulatory scheme. In this case, regulating adjacent wetlands falls under both (a) and (b), so Congress clearly had authority under the Commerce Clause to regulate such waters.First, Congress has authority to regulate "purely local activities that are part of an economic 'class of activities' that have a substantial effect on interstate commerce." [1] This is known as the "substantial affects" test and it's well-established as part of the Commerce Clause. The test is whether there is a "rational basis" for Congress's determination that the class of activities substantially affects interstate commerce. As long as there's a rational basis for determining that the regulated activity substantially affects interstate commerce, the regulated activity falls under the Commerce Clause power. Applying the test to the CWA, the activities regulated under the CWA are obviously economic in nature. Discharging pollutants into waters occurs primarily as a result of economic activities, including manufacturing, constructing, resource extraction, agriculture, waste disposal, and so on. And the Nation's waters are vital not only to these economic activities, but also to transporting goods, and to the fishing industry. The activities regulated by the CWA are thus clearly economic. And the pollution of adjacent wetlands has substantial effects on interstate commerce. The scientific evidence I cited in R2, which was entirely dropped by Pro, shows that wetlands remove pollutants from the Nation's waters; they operate as nutrient sinks which help keep the Nation's waters clean. The effects of nutrient pollution via adjacent wetlands can be devastating. Commercial fishing, for example, could be totally destroyed by elevated pollution levels. This could wreak havoc not only on the navigability of the waters (which is affected by pollution), but the Nation's fishing industry, as well as the amount of discharge from other industries cited above. So at the very least, Congress has authority to regulate adjacent wetlands that pollute traditional waters.Second, the Supreme Court has held that Congress has power to regulate purely intrastate activities under the Commerce Clause if it's an essential part of a larger regulatory scheme. In Raich, for example, the Court upheld a federal ban on purely intrastate possession of marijuana to avoid creating a "gaping hole" in the comprehensive federal drug control scheme. [1] Like Congress's authority to regulate intrastate possession of marijuana to avoid creating a hole in a comprehensive reuglatory scheme, Congress clearly has authority to regulate adjacent wetlands to avoid creating a "gaping hole" in Congress's comprehensive scheme to combat water pollution. So even if adjacent wetlands are purely intrastate, they're still fall under Congress's power to enact a comprehensive regulatory scheme (the keyword being comprehensive, which the CWA is).Finally, even if both the above reasons don't convince you (and they really should because of they're based on well-established Supreme Court precedents), there's yet another reason Congress has authority to regulate adjacent wetlands: to protect navigability. The power to protect navigabilty is fundamental under the Commerce Clause, and adjacent wetlands provide critical flood-control functions vital to continued navigability of the Nation's waters. [1] The scientific evidence I cited in R2 proves this fact true. Adjacent wetlands affect traditional navigable waters, which means they affect the navigability of these waters. That means regulating adjacent wetlands -- at least the ones that are found vital to continued navigability of the nearby water -- are within the fundamental core of Congress' power under the Commerce Clause.(2) Ordinary MeaningI don't actually understand what Pro's argment is but it seems to be that we should define "navigable waters" to mean waters that are "navigable-in-fact," instead of giving the term a "technical meaning." But that's not how complex statutes likes the CWA work. If you look at any comprehensive regulatory scheme like this (e.g. the Clean Air Act, the Endangered Species Act, the Affordable Care Act, etc.), they always contain a "definitions" section. That "definitions" section defines words in specific ways that have nothing to do with their ordinary meaning. The fact that "navigable waters" is defined to mean "the waters of the United States" doesn't mean there's a problem with the underlying policy. The point of the statute is to restore and maintain the Nation's waters, not just waters that are "navigable-in-fact." This is a comprehensive regulatory scheme, and "navigable waters," the word that's used to define the CWA's scope, should be defined broadly so as to achieve the stated objectives, to increase flexibility in the regulations, and to defer to the agencies' technical expertise. Nothing Pro argued suggests otherwise.[1] https://www.law.cornell.edu...