Concerning the Administration’s proposed rewriting of the Clean Water Act

Posted Thursday 4, 2019

In responding to the Administration’s proposed rewriting of the Clean Water Act, it is important to consider the original intention and language of the Clean Water Act as passed in 1972, together with the subsequent history of revisions and interpretations attempting to clarify the meaning of that language, and to supply language more precisely in accord with that original intent.

However, after careful assessment of the dramatic changes in protection of wetlands and streams that are projected by recodification of this rule, it is essential to examine and weigh correctly the motives and/or ideology behind the administration’s proposed rewriting.  One legal challenge to the CWA as it stands today may turn on the issue of States’ rights versus Federal powers (inappropriately described in this case as Federal “overreach”), though behind that issue doubtless looms the larger ideological conflict based on the clash between claims of individual property rights on the one hand, and assertion of the larger public good on the other, that is one of the central conundrums of the American legal and constitutional system, and indeed, American culture and the social order: the conflict between the just claims of the freedom of the individual and the undeniable right of government to control the actions of individuals that may be detrimental to public interests and to the interests of the community as a whole. 

Language and Purpose of the Original CWA 1972 through 2002

Addressing the first point: As summarized on the Worldwide Web, “The Clean Water Act’s primary objective is to restore and maintain the integrity of the nation’s waters.”  Accordingly, “focus[ing} on improving the quality of the nation’s waters,” the Clean Water Act, among other things, “protects valuable wetlands and other aquatic habitats through a permitting process that ensures development and other activities are conducted in an environmentally sound manner.” [1]

In the text of the CWA as amended 27 November 2002, SEC. 101. (a) reads, “The objective of this Act is to restore and main­tain the chemical, physical, and biological integrity of the Nation’s waters.” [33 U.S.C. 1251(a)]

The mention of “navigable waterways” in Section 101.(a)(1) and (6) of the original act of 1972 would appear to constitute a stumbling block in the way of resisting the Trump Administration attempt to overturn the administrative practice enforcing the CWA.  But most of the subsequent history of court cases and agency interpretations has recognized that limitation to “navigable waterways” (ignoring the implicit qualifications broadening the meaning imposed by 101(a)2, 3, 6, and 7 and other passages in the bill) would eviscerate the bill, making it impossible to achieve its stated purpose of “restor[ing] and maintain[ing] the chemical, physical, and biological integrity of the Nation’s waters.”  The phrase is in any case a relic of superseded nineteenth-century concerns.   

In the 1972 text itself, 101.(a)(1)(7) specifies that “(7) it is the national policy that programs for the control of nonpoint sources of pollution be developed and implemented in an expeditious manner so as to enable the goals of this Act to be met through the control of both point and nonpoint sources of pollution.” The inclusion of both point and nonpoint sources of pollution would seem to broaden the scope of the Act’s reach.  

101. (b) addresses the primary responsibility of the States, but fails to address the question, what is the responsibility of the Administrator and the Federal governmentwhere the State proves unwilling or unable to exercise its primary responsibility? Is the intervention of the EPA foreseen?

(Incidentally, 101(c) provides that “Public participation in the development, revision, and en­forcement of any regulation, standard, effluent limitation, plan, or program established by the Administrator or any State under this Act shall be provided for, encouraged, and assisted by the Adminis­trator and the States”—a provision scarcely honored in the current administration’s providing only one public forum and a minimal time-span for public response to its proposals.) 

The 2002 revision of CWA provided that “Federal agencies shall co-oper­ate with State and local agencies to develop comprehensive solu­tionsto prevent, reduce and eliminate pollution in concert with programs for managing water resources”—inserting a Federal presence into planning solutions, in cooperation with State and local agencies, and asserting the goal of “comprehensive solutions”—a point further insisted upon in 102(a): “comprehensive pro­gramsfor preventing, reducing, or eliminatingthe pollution of the navigable waters and ground watersand improving the sanitary condition of surface and underground waters. In the development of such comprehensive programs due regard shall be given to the improvements which are necessary to conserve such waters for the protection and propagation of fish and aquatic life and wildlife,recreational purposes, and the withdrawal of such waters for public water supply, agricultural, industrial, and other purposes. For the purpose of this section, the Administrator is authorized to make joint investigations with any such agencies of the condition of any waters in any State or States, and of the discharges of any sewage, industrial wastes, or substance which may adversely affect such waters [all italics mine].  The inclusion of “navigable and ground waters” and specification of “surface and underground waters” and the phrases “such waters” and “any waters in any State or States” underlines the comprehensive scope originally intended for the Federal CWA. 

In providing for the setup of planning agencies to design policies and programs under the CWA, note that included are “adequate representation of appropriate State, interstate, local, or (when appropriate) inter­national interests in the basin or portion thereof involved”—which would seem to include local and State or regional conservation interests, advocating for wildlife and habitat needs.  References in this section (102.2) to “river basin” and “basin” show that the concept of the CWA did not envision limitation of its provisions to permanent navigable streams and “contiguous” surface waters.  See 102.3: “(3) For the purposes of this subsection the term ‘‘basin’’ in­cludes, but is not limited to, rivers and their tributaries, streams, coastal waters, sounds, estuaries, bays, lakes, and portions thereof, as well as the lands drained thereby.”

Recognizing that networks of waterways and flowage patterns are not constrained or confined within State lines, section 103 enjoins the Federal government to “encourage the enactment of improved and, so far as practicable, uniform State laws relating to the prevention, reduction, and elimination of pollution.”  But failing interstate cooperation, in the case of waters affected by two or more states, the only way to assure the purposes of the CWA would be to have the Federal government, through the EPA or Corps of Engineers, assume responsibility.

While it has somewhere been asserted that “science cannot trump law in determining policies,” the matter of the “chemical, physical, and biological integrity of the Nation’s waters” is clearly an issue to be determined by scientific assay, not scanning the fine print in statute law. That the CWA intended that sound science should be the basis for government action in providing for “restor[ing] and main­tain[ing] the chemical, physical, and biological integrity of the Nation’s waters” is demonstrated by the whole of section 104, providing, among other things (item (6)), that the EPA administrator shall “conduct and promote the coordination and acceleration of research, investigations, experiments, training, demonstrations, surveys, and studies relating to the causes, effects, extent, prevention, reduction, and elimination of pollution;” and shall “collect and disseminate . . . basic data on chemical, physical, and biological effects of varying water quality and other information pertaining to pollution and the prevention, reduction, and elimination thereof; and (7) develop effective and practical processes, methods, and prototype devices for the prevention, reduction, and elimination of pollution.”

Responsibility for attending to agricultural sources of pollution is indicated in section 104(p): “In carrying out the provisions of subsection (a) of this section the Administrator shall, in cooperation with the Secretary of Agriculture, other Federal agencies, and the States, carry out a comprehensive study and research program to determine new and improved methods and the better application of existing methods of preventing, reducing, and eliminating pollution from agriculture, including the legal, economic, and other implications of the use of such methods.”  Again, the broad mandate to attend to “pollution from agriculture” indicates that the scope of the CWA is not envisioned as limited to “navigable waterways and contiguous wetlands” per se.

Under Section 105, Grants for Research and Development, it is asserted that

In carrying out the provisions of this section, the Administrator shall conduct, on a priority basis, an accelerated effort to develop, refine, and achieve practical application of: (1) waste management methods applicable to point and nonpoint sources of pollutants to eliminate the discharge of pollutants, including, but not limited to, elimination of runoff of pollutants and the effects of pollutants from inplace or accumulated sources; (2) advanced waste treatment methods applicable to point and nonpoint sources, including in place or accumulated sources of pollutants, and methods for reclaiming and recycling water and confining pollutants so they will not migrate to cause water or other environmental pollution; and (3) improved methods and procedures to identify and measure the effects of pollutants on the chemical, physical, and biological integrity of water, including those pollutants created by new technological developments.

Thus the 1972 Act (as amended November 27, 2002) addressed control of both point and non-point pollutants and run-off, as well as assessment of the effects of pollutants recognized at the time the act was drafted, and unforeseen pollutants arising from “new technological developments.”  

The foregoing analysis of the text of the original and amended CWA legislation largely supports the 2015 Act, rather than the intended drastic restriction and redefinition of the scope of Clean Water legislation in the U.S. 

The Previous Challenges to 2015 CWA: the Administration’s Claims and Motives [2]

The language justifying overturning the existing rule and its interpretation since 2015 is revealing: “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule,” the title of Executive Order 13778 signed by President Trump February 28, 2017.

So the justification for the administration’s action is three-pronged:  the claim that somehow the legal interpretation of the definition of “waters of the United States” for purposes of the CWA that culminated in the 2015 Act   ignores “the rule of law;” the assertion that the principles of Federalism and the division of powers between the Federal government and the states condemn the existing rule and interpretation of WOTUS as an instance of “Federal over-reach;” and the assertion that the existing rule and interpretation of WOTUS impedes untrammeled economic growth and profits.  Furthermore, the brief for recodification claims that “administrative uncertainty” over the meaning and application of the term WOTUS requires revisiting the definition and “clarifying” it—though the administrative uncertainty stems largely from the decision of the Sixth Circuit U.S. Court of Appeals to suspend EPA enforcement pending re-codification—see In re US Dep’t. of Def. and US EPA Final Rule: Clean Water Rule, No. 15-3751 (lead) (6th Cir. Oct. 9, 2015).   In September 2018, the United States District Court for the Southern District of Texas had issued a preliminary injunction against the 2015 Rule, “observ[ing] that if it did not temporarily enjoin the rule,” ‘‘it risks asking the states, their governmental subdivisions, and their citizens to expend valuable resources and time operationalizing a rule that may not survive judicial review.’’ Id., (The 2015 Rule was enjoined in 28 States and remained in effect following the lift of the Sixth Circuit stay in 22 States, the District of Columbia, and U.S. Territories.)

The Sixth Circuit Appeals Court decision, itself the source of much confusion, has been challenged on legal grounds (see https://www.eenews.net/stories/1060109731), but is nevertheless asserted by this document as “the legal status quo,” while codification of the proposed rule changes is justified as “not [a] change [in] current practice.”  

This document thus oddly claims that doing an end-run on the 2015 Clean Water Rule will provide “continuity and certainty for regulated entities, the states, agency staff, and the public.”  This move, which jettisons the whole history of progressive interpretation and clarification of the application of the CWA since its establishment in 1972, of which the 2015 Clean Water Rule was simply the last logical step, is being claimed in defiance of the facts as being “informed by applicable agency guidance documents and consistent with Supreme Court decisions, and longstanding practice.”

This may be the place to examine some history of cases developing the interpretation of the CWA that eventuated in the 2015 Rule [material derived from https://www.federalregister.gov/documents/2019/02/14/2019-00791/revised-definition-of-waters-of-the-united-states].

In United States v. Riverside Bayview Homes in 1985, the Court determined that“the close ecological relationship between adjacent wetlands and traditional navigable waters provided a legal justification for treating wetlands as waters.”  The Court also ‘‘conclude[d] that a definition of ‘waters of the United States’ encompassing all wetlands adjacent to other bodies of water over which the Corps has jurisdiction is a permissible interpretation of the Act.’’ Id.at 135. United States v. Riverside Bayview Homes, 474 U.S. 121, 131–35 & n.9 (1985) Id.at 134.  The literal sense of “navigable waterways,” a relic of nineteenth-century laws fostering westward expansion and the development of commerce before the railroads (and interstate!) had disappeared in the applications of the CWA during the fifteen years since the enactment of the law in 1972.  The 2015 Rule was the climax of a developing expansion of the applicability of the CWA.  

On the other hand, however, there have been court cases questioning interpretations of CWA that press against the “outer limits of Congress’s power under the Commerce Clause”—or what opponents of the 2015 Act call “government over-reach.”  In one central case in conservative attempts to restrict the application of the Act, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC), “The Court held that interpreting the statute to extend to nonnavigable, isolated, intrastate ponds that lack a sufficient connection to traditional navigable waters would invoke the outer limits of Congress’ power under the Commerce Clause. Id.at 172. Where an administrative interpretation of a statute presses against the outer limits of Congress’ constitutional authority, the Court explained, it expects a clear statement from Congress that it intended that result, and even more so when the broad interpretation authorizes federal encroachment upon a traditional state power. Id.The CWA contains no such clear statement. Id.at 174.  However, other cases have justified just such an extension of the meaning of the Act on the grounds that ignoring the connections of groundwater and intermittent streams, or wetlands that do not lie within the stipulated minimal and arbitrary distancefrom a navigable stream, would traduce the purpose of the Act as stated in Sec. 101(A).

Another limiting precedent that might need to be revisited occurred in January 2003, when the EPA and the Corps of Engineers “at that time focused the application of SWANCC (that same Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers) to the facts of the case as presented, and reached a decision restricting the exercise of federal jurisdiction based on the Migratory Bird Rule [which the EPA had adduced in justification of applying CWA to this isolated wetland].”  In reading its section 404 jurisdiction broadly, the Corps was not without congressional support. In defining "navigable waters" as "waters of the United States," Congress "evidently intended to repudiate limits that had been placed on federal regulation by earlier water pollution control federal statutes ..." Indeed, the conference report accompanying enactment of the CWA in 1972 states that "[t]he conferees fully intend that the term 'navigable waters' be given the broadest possible constitutional interpretation ...' seemingly an instance of a “clear statement from Congress that it intended that [interpretive] result.”  And surely the maintenance of the integrity of ecosystems—“the biological integrity of the Nation’s waters”—should allow the Migratory Bird Act some purchase on the decision-making process.

However, in scientific, if not narrowly legalistic terms, the 5-4 decision won by the conservative justices in SWANCC has potentially profound and disruptive consequences for wetlands conservation and restoration in general.  The Wikipedia article on SWANCC notes that in view of SWANCC, 

A key policy question that may not be clearly answered for some time is how regulatory protection of wetlands will be affected or reduced as a result of the decision. Many types of isolated wetlands are not physically adjacent to navigable waters and under a broad reading of the decision, would lack regulation. Major wetland types that potentially would not be regulated include prairie potholes of the Upper Midwest, wet meadows, river fringing wetlands along small non-navigable rivers and streams, lake fringing wetlands for smaller non-navigable lakes, many forested wetlands, playas and vernal ponds of Texas and other areas of the west, seeps and spring, flats, bogs and large amounts of tundra in Alaska. A new report by the Department of Interior's Fish and Wildlife Service estimates that in 1997, there were 105,500,000 acres (427,000 km2) of wetlands on public and private lands in the conterminous United States and that between 1986 and 1997, a net of 644,000 acres (2,610 km2) of wetlands was lost. According to an analysis prepared by the Association of State Wetland Managers (ASWM), accurate estimates of impacts of the decision on wetland resources are not possible, in part because of uncertainty about how key terms in the opinion (such as "adjacent" and "tributary") will be defined, whether broadly or narrowly. Still, ASWM believes that impacts are likely to be environmentally significant. 

Tentative state estimates which have been provided to the Association of State Wetland Managers suggest 30% to 79% of total wetland acreage may be affected.... Even if SWANCC results in only a one percent loss of America's wetlands, the decision would cause more wetlands to be destroyed than were lost in the past decade.

Scientists recognize the value of wetlands on the basis of a range of physical functions that they perform. One group of functions relates to water quality. Wetlands are good water filters: they remove and retain nutrients, they process chemical and organic wastes, and they reduce sediment loads to receiving waters. Wetlands also provide flood damage protection to urban and agricultural lands by storing flood waters that overflow river banks or surface waters and by collecting waters in isolated depressions. Wetlands recharge groundwater reserves that are hydrological: connected to surface waters. According to a 1995 National Research Council report, many of these functions occur irrespective of whether the wetlands are isolated or contiguous to navigable waters because of groundwater connections between isolate wetlands and surface waters. Small, shallow wetlands that are isolated from rivers are frequently important to waterfowl, the NRC said, for food and forage. Also, sites that are intermittently flooded, even those that may be completely dry for several years, can be important for storing flood waters and can have distinctive water-dependent biota (plants and animals) that persist over dry intervals but return when water return to the site.

The SWANCC decision affects not only privately owned lands but also isolated waters and wetlands on public lands: the federal government owns about one- third of the nation's lands. As a result of the Court's decision, federal agency decisions on these lands affecting isolated wetlands will no longer be subject to section 404 permitting, but they will still be subject to requirements of the National Environmental Policy Act and Executive Orders dealing with wetlands, floodplain management, and protection of migratory birds. 

In addition to the section 404 program, questions arise about impacts of the SWANCC ruling on other parts of the CWA, especially its principal permit program, the National Pollutant Discharge Elimination System (NPDES) program under section 402. It requires permits for pollutant discharges from point sources (industrial facilities and municipal sewage plants) into the nation's waters. Another provision, section 311, concerns liability for oil discharges into the nation's waters. Neither was at issue in this case but might be challenged through extension of the ruling. The January 19 joint Corps-EPA memorandum states that federal implementation of any other CWA provision that involves "waters of the United States" will be governed by the same interpretation that applies to section 404. As a result, federal jurisdiction to require NPDES permits or assess oil spill liability in some isolated waters could be limited. Such impacts will become clearer in time. 

The contested interpretation of “waters of the United States” highlighted in SWANCC continued in Rapanos v. United States, 547 U.S. 715 (2006).  Once again, “a four-Justice conservative plurality interpreted the term ‘‘waters of the United States’’ to ‘‘include[ ] only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams[,] . . . oceans, rivers, [and] lakes,’ ’’ Rapanos, 547 U.S. at 739 (Scalia, J., plurality) (quoting Webster’s New International Dictionary 2882 (2d ed. 1954)), and ‘‘wetlands with a continuous surface connection’’ to a relatively permanent water. Id. at 742. The plurality explained that ‘‘[w]etlands with only an intermittent, physically remote hydrologic connection to ‘waters of the United States’ do not implicate the boundary-drawing problem of Riverside Bayview,’’ and thus do not have the ‘‘necessary connection’’ to covered waters that triggers CWA jurisdiction. Id.at 742.  But the plurality also noted that its reference to ‘‘relatively permanent’’ waters did ‘‘not necessarily exclude streams, rivers, or lakes that might dry up in extraordinary circumstances, such as drought,’’ or ‘‘seasonal rivers, which contain continuous flow during some months of the year but no flow during dry months . . . .’’ Id.at 732 n.5.  In an important qualification on the purportedly “plurality” decision (actually 4 – 1 – 4) that is never quoted in the current attempt to overturn 2015, Justice Kennedy stated that adjacent wetlands possess the requisite significant nexus if the wetlands ‘‘either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’ ’’ Id.at 780, my italics.

Rapanos was the key case on which the Trump administration relied in reversing the interpretation of WOTUS (the Waters of the United States law) that had been followed by both the Bush and Obama administrations—a reversal in violation of the Administrative Procedures Act, which specifies that in reversing past precedents and procedures, an agency “has to clearly say, 'Here is what we used to do, and here is why we don't want to do it anymore.'" [3]

The Trump Administration further justified its proposal on the grounds that continuing litigation having confused “the regulatory landscape,” “the Supreme Court also has twice weighed in on topics related to the agencies’ implementation of their authorities under the CWA to help clarify federal authority in this area. In each case, members of the Court noted the longstanding confusion regarding the scope of federal jurisdiction under the CWA and the importance of providing clear guidance to the regulated.”  Conservative justices have consistently worried about “the reach and systemic consequences of the Clean Water Act remain[ing] a cause for concern.’’ Cf. U.S. Army Corps of Engineers v. Hawkes, 136 S. Ct. 1807, 1812 (2016) Id.at 1816 (referring to the ‘‘ominous reach’’ of the Act).

While the administration relied on Justice Scalia’s narrow interpretation that “only waterways and wetlands with ‘relatively permanent’ surface water connections to larger waterways should be regulated under the Clean Water Act,” the opinion of swing vote Justice Anthony Kennedy (noted above) provided a more nuanced and scientifically defensible interpretation.  Justice Kennedy stipulated that “streams and wetlands should be protected if they have chemical, biological or hydrological connections to waterways.“  That test — which he called a "significant nexus" — became the defining characteristic of his opinion, and the rule followed by subsequent administrations, until the present attempt to gut the entire CWA.  Kennedy's opinion explicitly rejected the idea of basing federal jurisdiction, as both Scalia and the Trump administration do, on the presence of a continuous flow of water.  He wrote that the Scalia limitation of the scope of jurisdiction "makes little practical sense in a statute concerned with downstream water quality." Under that approach, "The merest trickle, if continuous, would count as a 'water' subject to federal regulation, while torrents thundering at irregular intervals through otherwise dry channels would not," Kennedy wrote.

The fundamental clash here comes down to the Administration arguing  that "The line between Federal and State waters is a legal distinction, not a scientific one,” in line with the whole tendency of the Administration’s view to marginalize scientific evidence in favor of the narrowest legalistic interpretation of statute language, taking authority and jurisdiction away from the Federal government and remanding it to the states. Buzbee argues that the Administration is breaking with previous administrations not just in privileging Scalia’s interpretation over Kennedy’s (while ignoring the most significant contribution in Kennedy’s opinion, the “significant nexus” test), but also in deciding that which waterways and wetlands are to be protected is merely a matter of law, not science—while the agencies concerned “have said that science matters in this question back to the 1970s,"

“Following Rapanos, on June 7, 2007, the agencies issued joint guidance entitled, ‘‘Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States and Carabell v. United States,’’ to address the waters at issue in that decision but did not change the codified definition. The guidance indicated that the agencies would assert jurisdiction over traditional navigable waters and their adjacent wetlands, relatively permanent nonnavigable tributaries of traditional navigable waters and wetlands that abut them, nonnavigable tributaries that are not relatively permanent if they have a significant nexus with a traditional navigable water, and wetlands adjacent to nonnavigable tributaries that are not relatively permanent if they have a significant nexus with a traditional navigable water (adopting Justice Kennedy’s crucial phrase). The guidance was reissued on December 2, 2008, with minor changes (hereinafter, the ‘‘Rapanos Guidance’’).

But President Trump’s Executive Order 13778 of February 28, 2017, directs the agencies to ‘‘consider interpreting the term ‘navigable waters’ . . . in a manner consistent with’’ Justice Scalia’s plurality opinion in Rapanos v. United States, 547 U.S. 715 (2006) (Section 3), eliding the crucial phrase from Justice Kennedy’s opinion.

Summary

The justification put forward by the Administration for its Re-definition and re-codification of WOTUS is based on the fact (sketched in the summary of cases and interpretations above) that “the central term delineating the federal geographic scope of authority under the CWA—‘‘waters of the United States’’—has been the subject of debate and litigation for many years.” The Administration claims that its proposal would “establish a regulation that would define ‘waters of the United States’ in simple, understandable, and implementable terms to reflect the ordinary meaning of the statutory term, as well as to adhere to Constitutional and statutory limitations, the policies of the CWA, and case law, and to meet the needs of regulatory agencies and the regulated community.”  However, the tendency of the Administration proposal is to narrow the interpretation of WOTUS to the point where most of the “waters of the United States” would lie outside the regulatory authority of the EPA and the Corps of Engineers.  Surely such redefinition and recodification would belie the original objective of the CWA: “The objective of the CWA, as established by Congress, is ‘‘to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.’’ 33 U.S.C. 1251(a).

If we accept that “Agencies must determine what Congress had in mind when it defined ‘‘navigable waters’’ in 1972 as simply ‘‘the waters of the United States,’’ then the EPA and Corps were within their rights in promulgating the 2015 Rule. 

Furthermore, the whole tendency of interpretation before the October 9, 2015 decision by the Sixth Circuit Court of Appeals to suspend the EPA’s enforcement of the 2015 Rule, with the partial exceptions of SWACC and Rapanos (and ignoring Justice Kennedy’s key assertion of the importance of the “significant nexus” test) was in favor of the broader interpretation of WOTUS.  For example, “By the time the 1972 CWA amendments were enacted, the Supreme Court had also made clear that Congress’ authority over the channels of interstate commerce was not limited to regulation of the channels themselves, but could extend to non-navigable tributaries as necessary to protect the channels. See Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 523 (1941) (‘‘Congress may exercise its control over the non-navigable stretches of a river in order to preserve or promote commerce on the navigable portions.’’). The Supreme Court had also clarified that Congress could regulate waterways that formed a part of a channel of interstate commerce, even if they are not themselves navigable or do not cross state boundaries. See Utah v. United States, 403 U.S. 9, 11 (1971). 

Again, “Thus, a wetland that abuts a navigable water traditionally understood as navigable is subject to CWA permitting because it is ‘‘inseparably bound up with the ‘waters’ of the United States.’’ Id. at 134. ‘‘This holds true even for wetlands that are not the result of flooding or permeation by water having its source in adjacent bodies of open water.’’ Id. The Court also noted that the agencies can establish categories of jurisdiction for adjacent wetlands. See id.at 135 n.9.

The 2018 EPA document proposing the redefinition and recodification of WOTUS proceeds to evaluate economic costs and benefits of codification and implementation of Executive Order 13778. The text minimizes the economic impact of changing the definition of “waters of the United States,” granting that “the proposed rule changes the waters where other regulatory requirements that affect regulated entities come into play, for example, the locations where regulated entities would be required to obtain certain types of permits.” But the reassuring proviso that, nevertheless, “there are no avoided costs or forgone benefits” depends on the existence and continued application of “similar state regulations” that apply to that water—regulations the existence of which the proposal does not address, and whose continuance can in no way be assured by this proposal.  And indeed the document admits that the EPA and Army Corps of Engineers “do not have enough information to estimate the extent to which states would move to regulate waters that are no longer jurisdictional under the CWA.”  

The attempt to provide an economic analysis of the costs and benefits of the proposed change to WOTUS bogs down in a plethora of uncertainties and inadequacies of data.  In evaluating admissible costs, this document admits that in calculating households’ willingness to pay for wetland conservation, the studies used by the 2015 CWR were dated, being published between 1986 and 2000, and that “public attitudes toward nature protection could have changed,” (they certainly have, with recent quantum leaps in public awareness of global warming, ocean pollution, oil spill damage, population crashes among pollinators and the sixth great extinction!) while “tremendous advances” in statistical and economic methods “have improved the ability to collect and analyze data on the willingness to pay for changes” in what the agencies term “environmental amenities” [!] (italics mine).  

In view of these uncertainties in calculating both avoided costs and forgone benefits of the proposed change, particularly in the case of the forgone benefits of wetland protection, “the agencies believe the cumulative uncertainty in this context is too large to include quantitative estimates in the main analysis for this proposed rule.  However, the agencies are confident that the forgone benefits of wetlands protection are greater than zero (italics mine!), and therefore present these as unquantified benefits” in the tables adduced in the report.  As a result, the tables of economic costs and benefits set the calculable figures for costs avoided against the incalculable figures for benefits foregone, and end up in their low-end scenario setting minimum and maximum figures for costs avoided by adopting the proposed overturning of the 2015 Rule at between $162.2 million and $313.9 million in 2016 dollars, while foregone benefits in low-end scenario would range from $33.6 million + an undetermined amount to $44.5 million + an undetermined amount.  In the high-end scenario, these figures are a range of $242.4 million to $476.2 million for costs avoided, set against $55.0 million to $72.8 million for benefits foregone.   

Pretty clearly, nothing definite can be concluded concerning economic costs and benefits from such a comparison of concrete figures for costs to vague, undetermined totals for benefits foregone.  And in any case, when figuring the costs of pollution and eradication of ecological complexes, any estimate of comparative costs and foregone benefits must take account of long-term costs of clean-up of pollution or correction of environmental degradation and lasting consequences over extended periods of time, not merely an annual snapshot of a moment in time. 

Moreover, all of the arguments in the document concerning benefits from “removing uncertainty about the future regulatory regime” could just as well apply to removing uncertainty by upholding and clarifying the 2015 Rule.  And upholding 2015 while clarifying Federal responsibility under interstate commerce clauses, responsibility for “providing for the common good,” and adjudicating conflicts between inconsistent state regulations pertaining to shared waters would eliminate the persisting uncertainty recognized in the document about states’ responses to this rulemaking and the outcome of the forthcoming substantive reevaluation of the definition of “the waters of the United States” under the proposed rule change.  In other words, the proposed change will itself result in the colossal uncertainty as to what, if anything, the individual states will or will not do individually in response to the elimination of Federal oversight of the waters and wetlands excluded by the proposed change of definition.

The attempt to assess “distributional costs and benefits” is again dogged by difficulties in estimating the future effects and weighing gains for higher income segments of the population against losses for lower income segments, and vice versa.  The agencies admit that “2015 CWR may have increased property values that, for example, benefited from additional flood protection provided by protected wetlands or from higher quality recreational opportunities and increased tourism from protected waterways. There would also have been an increase in the social value of wetlands that may have been produced for compensatory mitigation as a result of the 2015 CWR.  These increased property and social values will be forgone under the proposed rule”—but again, it is impossible to properly quantify these theoretical beneficial consequences.   

The document calculates “Present Value of Net Benefits to 2030” of their proposed change, but of course cannot provide estimates of projected foregone benefits that are as concrete as their figures for projected avoided costs because of the disparity already noted. 

Some Issues and General Principles to Apply to the CWA Controversy

Here are some thoughts on general principles that, beyond analysis and interpretation of the statutes and rules in question, ought to have a bearing on “the objective  . . . to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.“

It is always easier to take narrow views and seek simplistic solutions that evade or elide complexities; it is easier to heed the aggrieved individual who howls that his property rights are being violated by government edict than it is to recognize properly the rights of a larger community of potentially affected individuals and interests—and surely we must include among this larger community of stakeholders, not only the human populations downstream, but the ecological communities of migratory birds, aquatic animals and plants, the whole dendritic system of which any given water is a functioning part, and indeed, the successor generations of those stakeholders. 

A general principle of moral philosophy declares that that good is best which is most generally distributed; of utilitarianism, the pursuit of the greatest good to the greatest number.  One of the motives of the Administration’s attempt to revise the CWA is that restriction of the broader scope of the regulations as interpreted under the 2015 Rule would generate millions of dollars of economic benefits.  However, as revealed at the merest glance by the statistics on avoided costs and foregone benefits produced by the EPA to justify the recodification of the law, concrete figures for annual costs avoided by the change are figured for such items as “Permit Application” and “Mitigation—Wetlands,” many of which would be borne by individuals seeking permits or local government corrective actions, while there is no accounting for down-stream costs of elimination of the extended protections enjoined by the 2015 Rule, which would be borne by those harmed by flooding and pollution downstream; no accounting for public health costs, and costs to the taxpayer for remediation of harm done.  Likewise, for most categories of “benefits foregone” by the proposed change, no calculation is attempted: “not quantified;” “not quantified;” “not quantified.”  Besides, while costs—for example application for permits, studies to justify variances from the Rule, etc.—are presented on an annual basis, there is no accounting for long-term costs of pollution, flood damage, public health impairment, and other deleterious effects of the proposed change that will persist for many years.  

While an individual developer or farmer may be inconvenienced by the cost and paperwork of applying for permission for a project under the 2015 Rule, the harm to isolated individuals cannot outweigh the probable harm to large numbers of persons downstream who will be affected by pollution, disruption of the water cycle, and deterioration of delicate ecosystems caused by exempting so wide a variety of “waters of the United States” from regulation—harms which are inevitable, but much more difficult to quantify in prospect.  

Much of the harm we do in the world, much of the trouble we cause ourselves, results from our taking short views.  It is a short view that privileges a dollar made today over ten dollars or a hundred that making that dollar now will cost down the road.  It is a short view that tries to crop unsuitable land for a profit this year or this decade, and by eroding the soil or poisoning it for years with persistent pesticides and herbicides, renders that soil unprofitable and useless and poisons the drainage in perpetuity.  It is a short view that dumps wastes in the ravine on the back forty, or inundates the corn or soybeans with chemicals--wastes and poisons that wash into the nearest drainage and thence into waterways—eventually even “navigable waterways”-- doing untold cumulative harm.  It is a short view that says that only “navigable waterways” and persistent streams deserve EPA protection, while “wetlands and marshes, playas and Prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands,” are inconsequential and may be dispensed with.  It is a short view that does not recognize that water flows downhill and downstream, and the waste or poisons dumped in that dry ravine or isolated marsh or strip-mined mountaintop will at the first gully-washer be flushed down into the river that provides the drinking water to cities downstream.  It is a short view that discounts the value of hundreds of thousands of migrating cranes and waterfowl, of nesting avocets and black-legged stilts, of the vistas of salt-marsh sedges moving rhythmically in the wind, because that value is not most immediately apparent in monetary terms (discounting the economic contributions of hunters and fishers and tourists and photo buffs who will travel miles and stay for days to enjoy the spectacle, of course).  It is a short view that the company or industrial farm takes when it dumps its pollutants into the nearest stream, or flood-prone waste-water lagoon, in the hope that their profits will be banked and their business will have moved on before the damage is discovered and the reckoning comes. It is a short view that discounts the good of future generations in favor of a quick fix or a marginal gain today, or next quarter.  

It has been argued that law, not science, must determine policy.  But for policy-makers, especially policy-makers concerned with water policy and natural resources and the environment, to ignore or discount the manifest evidence of scientific research and demonstrable proofs afforded by chemistry, biology, hydrology, public health, and ecological science in favor of being guided by a narrow legalism or parsing old laws, or worse yet, an ideological bias, would seem more than folly; it would seem, given the stakes, criminal.  Clearly, in view of a contemporary hydrological understanding, divorcing navigable waters from wetlands not obviously enjoying “surface connections” or within 150 feet of the navigable water, and ignoring the water table and underground water, is absurd; as blind as to fail to take account of droughts and floods.  The Administration proposal in this case would make the achievement of the original purpose of the Clean Water Act, “to restore and maintain the chemical, physical, and biological integrity of the nation’s waters,” impossible of realization.  And in any case, as already noted, the collection and application of scientific evidence is mandated in Sections 104 and 105 of the 1972 CWA. 

Finally, public policy measures like the 2015 CWA Rule, the reading that the Administration proposal intends to replace, would surely find ample justification under the constitutional umbrella of that clause from the Preamble: “to promote the general welfare.” 
 

--M. L. Donnelly

Editor, Prairie Wings and Board Member, Audubon of Kansas

Retired Professor of English, Kansas State University

1819 Fairchild Avenue

Manhattan, Kansas 66502
 



[1] What follows relies importantly on FEDERAL WATER POLLUTION CONTROL ACT, AS AMENDED BY THE CLEAN WATER ACT OF 1977, found at https://www3.epa.gov/npdes/pubs/cwatxt.txt as well as https://www.govinfo.gov/content/pkg/USCODE-2010-title33/pdf/USCODE-2010-title33-chap26.pdf and https://www.federalregister.gov/documents/2019/02/14/2019-00791/revised-definition-of-waters-of-the-united-states

Also on the EPA document “Economic Analysis for the Proposed Definition of “Waters of the United States” –Recodification of Pre-existing Rules”  

[2] Evidence drawn from the EPA document “Economic Analysis for the Proposed Definition of “Waters of the United States” –Recodification of Pre-existing Rules”   

[3] See opinion of Georgetown Law Professor William Buzbee—cited in  https://www.eenews.net/stories/1060109731)  See also see David Festa, Senior Vice President of the EDF’s Ecosystems program, at https://www.edf.org/blog/2018/02/05/why-epas-suspension-wotus-water-rule-sets-such-dangerous-precedent.  

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