Who Knew The Term “Waters of the United States” Could Be So Controversial?

It’s hard to swim in a river when the river is on fire. Sure, you can buy an expensive flame-retardant suit, but who has the time or money for that? We also need that river water for boring stuff like drinking and showering.

Fed up with the high cost of swimming due to river fires, Congress passed the Clean Water Act (“CWA”) in 1972 with the goal of making the nation’s rivers and lakes a little less garbage-like. Since then we’ve been arguing over exactly how much garbage, oil, and other stuff can be in our streams, rivers, and lakes. The most recent development was the EPA’s announcement last week that it wants to relinquish control over smaller streams that feed into larger rivers so as to allow states and general populace to make these decisions. While that is certainly good news for private property advocates, it means we’ll continue to spend money rectifying a harm instead of preventing it in the first place.

How Does This Clean Water Act Work Exactly?

The CWA gives the federal government jurisdiction over “navigable waters.” This term was left undefined in the statute, but it was adopted from decades of common law court decisions and pre-Clean Water Act statutes. The federal government’s authority over such waters was thus relatively undisputed, though indefinite, when the Clean Water Act was enacted.

Fires on Ohio’s Cuyahoga River in 1969 served as a visual reminder that Congress needed to create better water-quality laws

However, amendments to the Clean Water Act in the early 1970’s added more details to the definition of “navigable waters,” which included the phrase “waters of the United States.” While “waters of the United States” has a nice ring to it, this did little to clear up the confusion over exactly which water bodies Congress was referring to. The general consensus after looking at discussion points made by legislators during the creation of the CWA is that Congress was attempting to give the federal government its maximum authority over the country’s waterways.

That maximum authority to prescribe water quality rules for the nation’s waterways is limited by the Constitution. There is nothing in the Constitution specifically designating the federal government as the nation’s water quality authority, which would mean it’s a responsibility reserved for the states. However, the Constitution’s Commerce Clause does give the federal government authority over interstate commerce. Since waterways are used to conduct business and are also a source of business, the federal government seems to have some authority to make sure waterways are both navigable and clean. 

Congress passed the Clean Water Act, so now the President has to implement it. The EPA is the federal government agency tasked with interpreting and implementing the Clean Water Act. The agency is therefore required to determine what Congress meant by “navigable waters” and “waters of the United States.” The EPA (along with the Army Corps of Engineers) implements the CWA by mandating certain water quality standards, which largely translates into a permitting scheme for those wishing to discharge pollutants into bodies of water.

When an agency creates or changes its interpretation of statutory terms, courts are asked by those challenging the interpretation whether the interpretation fits with both the statutory definition provided by Congress (in this case, the CWA) and if it exceeds the federal government’s Constitutional authority (in this case, over interstate commerce).

Farmers and real estate agents vs. clean water advocates

Let’s fast forward now to 2015. That year, the Obama Administration proposed strengthening the definition of the “waters of the United States” to include lesser streams and wetlands that feed into larger rivers that already fall under the definition. The idea being that since we have to clean up and prevent pollution in larger bodies of water anyway, we might as well stop the pollution before it feeds into them. Practically speaking it means a permit is now needed to introduce pollutants into smaller streams or to destroy certain wetlands when previously no permit was needed in those scenarios.

The EPA estimated that the new rule would increase the number of waterways under federal jurisdiction by 2.8 percent. Opponents, including states, farmers, miners, and real estate agents, have fought against the definition, calling it an invasion of private property rights and a magnification of burdensome regulation.

Implementation of the new definition was blocked in parts of the country by a federal judge after Georgia and several other states sued. President Trump recently announced a revised definition that removes smaller streams, tributaries, and wetlands from federal jurisdiction. Naturally, this move was cheered by farmers, miners, and real estate agents.

Smaller farmers and businesses have a sympathetic argument. An expanded definition would apply federal regulations to waterways some consider to be traditionally under the control of landowners, as well as state and local authorities. This would subject more private property to government regulation and potentially raise compliance costs. States must also issue permits for discharging pollutants into additional waterways, which would present another cost.

But the debate should be focused less on private property rights and more on when we want to clean up pollution

We already accept the fact that certain regulations that diminish private property rights are necessary. Burning large piles of wood in your backyard not only contributes to larger pollution concerns, but the smoke directly diminishes your neighbor’s right to do things like stand in their yard and breathe air. Restricting such practices infringes on the right to use your property as you wish, but is necessary to protect the rights of the larger community. So we already agree that in many instances private property rights need to be diminished to protect the peaceful interests of others.

Fertilizers and animal waste have to be cleaned up. While pollutants that run into lesser streams or ditches may seem insignificant, they feed into larger streams that comprise drinking water and provide recreational opportunities like swimming and fishing. Since people generally need water to be clean in order to drink it, swim in it, and fish in it, this isn’t a question of whether we want to clean it up, but when.

With a limited definition of “waters of the United States”, only pollutants going directly into larger bodies of water are managed. That costs money and those costs are borne by businesses, consumers, and taxpayers. With a broader definition, more pollutants are cleaned up before they enter the larger streams and lakes. That costs money and those costs are borne by businesses, consumers, and taxpayers.

Why would we choose the scenario in which a critical common resource is being harmed over the option that prevents the harm in the first place? 

So money is being spent by everyone either way you look at it. Regulating what pollutants farmers can use on their property or how a property can be developed clearly infringes on private property rights. But in a situation where we all pay the costs of cleaning up those pollutants, it makes little sense to purposefully take no action until harm has already occurred.

The EPA and US Army Corps of Engineers estimated that expanding the definition of “waters of the United States”  would result in net economic benefits of between $30 and $190 million. Studies also indicate that we routinely overestimate the cost of complying with federal regulations.

Some small businesses will undoubtedly fare worse than others, though. Money that would have been used to clean up waterways could instead go to reimbursing small businesses for the higher cost of complying with more burdensome regulations. The federal government issues grants to local wastewater treatment plants to comply with the Clean Water Act. Perhaps similar grants could be given for small farmers or businesses that face a financial hardship in complying with new rules.

In thinking about the rule we should focus on what is the most reasonable and sensible way of combating pollution – not just on upfront costs, how many homes can be sold today, or whether a rule imposes an additional burden on a landowner. There’s no reason why we can’t prevent harm before it occurs by expanding the scope of the Clean Water Act while also compensating those small business owners who bear the upfront cost of ensuring we have cleaner water.

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