How should the term “Waters of the United States” be defined under the Clean Water Act? For decades, the Environmental Protection Agency and the Army Corps of Engineers have struggled to define this term, primarily because they have consistently sought to go beyond what is legally authorized. The Trump administration has proposed a new definition that does something different by seeking to stay within the law.
Even if the Trump administration develops a clear, reasonable, and legally defensible rule, a future administration can always try to undo it. Rather than leave the matter iffy, Congress should step in and properly define the term itself in statute. Fortunately, there are some proposed legislative solutions. Senators Mike Braun and Joni Ernst have introduced the Define Waters of the United States Act, which is similar to legislation introduced in the lower chamber by Representative Jaime Herrera Beutler.
These proposals would, for the first time, expressly clarify in statute that the regulatory reach of the Clean Water Act goes well beyond traditional navigable waters, extending to their tributaries and adjacent wetlands as well. The legislation though would bring some common sense to discussions of what the act does not cover. For example, it would not regulate what most people would consider to be dry land, such as depressions that hold water a few days a year after heavy rainfall.
Nor would it regulate waters that cannot be seen by the naked eye or may no longer even exist. It also would not include a catch all category of waters so that the federal government can retroactively, on a case by case basis, determine that specific waters are regulated under the law. The proposed legislation would address two of the biggest problems of the definition, which are the complete disrespect for the states under the Clean Water Act and the lack of clarity as to what is even regulated.
The Environmental Protection Agency and the Army Corps of Engineers have failed to follow the plain language of the Clean Water Act regarding the state role in addressing pollution. In fact, they have acted more like a local zoning board than a responsible federal agency. The Clean Water Act, right at the start of the statute, makes it perfectly clear that the states should take the lead on water pollution. The proposed legislation respects this position by not trampling on the role of state and local governments.
The Environmental Protection Agency and the Army Corps of Engineers have also adopted subjective and vague definitions, while inconsistently enforcing the law. These problems have gotten worse since the General Accounting Office highlighted them in 2004. Owners may simply decide to forgo certain ordinary activities on their property, such as farming, out of fear that they could be subject to civil and criminal penalties. The legislation would provide much needed clarity for property owners, detailing what is regulated and what is expressly excluded.
This is important because a vague and subjective “Waters of the United States” definition can impact almost anyone. If people are merely engaged in dirt moving activities, they might be affected, depending on the scope of the definition. It can impact anyone from farmers plowing land and families seeking to build their dream homes to cities and counties trying to build public safety ditches to help prevent flooding.
Legal and practical considerations too often get ignored because some assume that to have clean water, the federal government must regulate almost every water imaginable. Yet, Congress expressly disagreed with such a mindset in the Clean Water Act. Instead, Congress looked to the states, a choice that makes perfect sense since states know how best to address their specific environmental needs, as opposed to the federal government using a centralized “one size fits all” approach.
The bill keeps the legal and practical considerations in mind, helping to protect private property rights and respect the rule of law. By creating objective and clear definitions, the Environmental Protection Agency and the Army Corps of Engineers would be able to spend less time guessing on what is regulated, thereby generating fewer horror stories born of trying to regulate tire ruts in dirt roads, and more time focusing their attention and resources on those waters that must clearly be considered “Waters of the United States.” This approach is ultimately a win for the environment and for achieving the objectives of the Clean Water Act.
This piece originally appeared in The Hill on 8/13/19