▪ NYT on Clean Water Act Rules After Rapanos

Today's NY Times is running a story, After Lobbying, Wetland Rules Are Narrowed, on the aftermath of Rapanos v. United States, the decision where a plurality of the Supreme Court decided the Corps of Engineers' Clean Water Act jurisdictional rules were too broad.

The story's headline and lede are off base, implying that the regulations were being "pulled back" since the "rules could lead to federal protection of isolated and insignificant swamps, potholes and ditches" --

After a concerted lobbying effort by property developers, mine owners and farm groups, the Bush administration scaled back proposed guidelines for enforcing a ruling governing protected wetlands and streams.

(emphasis added).

Whoa, hold on a minute there, hoss. I thought that scaling back jurisdiction was the whole point of this post-Rapanos exercise. 

In that case, five Justices agreed on the result (although not the reasoning) that the then-existing Corps regulations exceeded their statutory jurisdiction and were too broad.  In other words, the regs covered too much, not too little.  So to claim the new regs are bad simply because they narrow the scope of Corps' jurisdiction and may "leave thousands of sensitive wetlands and streams unprotected" begs the point.  Federal authority is not unlimited, and to broaden the application of the Act remains job of Congress, not the Corps.