The Muddied Text of the Clean Water Act Spells Trouble Ahead

• Publication year: 2019
• Author: by Sean G. Herman*

THE MUDDIED TEXT OF THE CLEAN WATER ACT SPELLS TROUBLE AHEAD

by Sean G. Herman*

The Clean Water Act is in peril, and Congress must save it. As the Act becomes more inscrutable with age, a need for clarity drives this imperative. Developments in technology and statutory interpretation, together with increased litigation, animate this concern by highlighting ambiguities in the Act's keystone provisions. And since the Act imposes criminal penalties, these ambiguities are running afoul of the Constitution by giving inadequate notice of the conduct it punishes.

As Congress has not legislated meaningful updates to the Act since 1987, presidential administrations have exploited these ambiguities. There are, of course, substantial disagreements about how the federal government should regulate water quality. But instead of resolving these differences through the forge of the legislative process, the debate's extremities reach society through each new administration's increasingly substantial shift in executive action. As Congress fails to act while the judiciary defers to agencies, the executive branch is in many respects the controlling authoritative body that determines and enforces the Act's central provisions.

This accumulation of power seems at odds with the rise of textualism, the primary device for interpreting statutes. Through textualism, courts are growing concerned about "elephant-sized" regulations based upon "mousehole-sized" ambiguous statutes. This presages trouble for continued regulation under the Act's current language.

Three recent developments in Clean Water Act enforcement underscore this concern: (1) defining jurisdictional waters, (2) determining total maximum daily loads, and (3) determining whether the Act regulates groundwater pollution. A common theme among these is the Act's lack of clear definitions and guidelines. Because of this, the Act's outer limits and internal mechanics are difficult to divine.

Rather than address these well-known issues, Congress has instead abdicated its legislative duties through inaction. This impels the executive branch to develop major policies based on how they interpret the Act's ambiguous requirements. When these policies substantially change with each new administration, the resulting mercurial shift breeds uncertainty that benefits neither the environment nor the regulated community. Worse, it widens fractures in the tripartite government upon which our society depends for accountability and stability. The solution is for Congress to take back its lawmaking powers and update the Clean Water Act. This is in both environmentalists' and the regulated community's best interests.

I. WATERS OF THE UNITED STATES

The first major development under the Clean Water Act centers upon the most rudimentary question: which waters does the Act regulate? Though the linchpin of the entire Act, the answer has never been clear.

The Act prohibits the unpermitted "discharge of any pollutant,"¹ which in turn means the prohibition of "any addition of any pollutant to navigable waters from any point source."² "Navigable waters," therefore, are what the Act protects. Yet, the Act never determines what those are. While "navigable waters" has a commonly understood, historical meaning, the Act does not apply that meaning. Instead, it defines "navigable waters" as "the waters of the United States, including the territorial seas."³

Unlike "navigable waters," "waters of the United States" lacks a commonly understood meaning and, worse, the Act doesn't define the phrase. Still, courts have understood "waters of the United States," or WOTUS for short, to include more than the "traditional tests of navigability" and instead have asserted federal jurisdiction "over the nation's waters to the maximum extent permissible under the Commerce Clause of the Constitution."⁴ But rather than determining the extent to which that jurisdiction could be asserted, Congress has left that task to the executive branch.

Defining WOTUS, and thus the outer limits of the Act, has been a perennial struggle since the Act's inception. A recent iteration of this struggle was the Obama Administration's adoption of the Clean Water Rule. This regulation sought to clarify and expand the WOTUS definition. Most controversially, the Clean Water Rule included intermittent and ephemeral streams that are hydrologically connected to navigable waters by virtue of either being within a specified distance of a navigable water's ordinary high water mark, or as determined on a case-by-case basis.

Industry reacted strongly to the Clean Water Rule by highlighting the executive branch's significant expansion of regulatory authority over bodies of water and land, like remote desert swales and wetlands, that states traditionally regulate. Lawsuits ensued and, despite four years of litigation and a trip to the Supreme Court,⁵ a resolution remains well outside our grasp. Presently, the Clean Water Rule defines WOTUS in twenty two states, while courts have stayed the regulation in the remaining twenty eight states. Though the Clean Water Rule intended to clarify the Act's outer limits, its net effect was more confusion.

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Then, the Trump Administration moved to repeal the Clean Water Rule and replace it with its own WOTUS definition. On February 14, 2019, the Trump Administration published a proposed regulation redefining WOTUS.⁶ The proposed Trump Rule would overhaul the Act's jurisdiction in many respects. Of these changes, two are critically important in the arid west.

First, the Trump Rule would categorically exclude waterways that flow only in response to precipitation. These seasonal or temporary bodies of water are prevalent in the west and include vernal pools, arroyos, and dry washes that fill with water only after seasonal rains or snowmelt.

Second, the Trump Rule regulates only "adjacent wetlands" that either abut or have a direct hydrological surface connection with traditionally navigable waters. By requiring that a wetland actually touch the navigable water, the administration intends to conform the definition to the Supreme Court's plurality opinion in Rapanos v. United States. There, the plurality opined that "only those wetlands with a continuous surface connection" to WOTUS are "adjacent to" those waters and thus covered by the Act.⁷

But, importantly, Rapanos was a fractured decision lacking a majority opinion. Instead, the Court issued a 4-1-4 opinion in which Justice Antonin Scalia wrote for the plurality, Justice Anthony Kennedy in concurrence, and Justice John Paul Stevens for the dissent. In contrast to the Trump Rule, the Obama Administration drafted the Clean Water Rule to conform to Justice Kennedy's concurrence, which provided that the Act's jurisdiction extends to those nonnavigable waters and wetlands that have a "significant nexus" to "navigable waters."⁸ This is a marked difference from the plurality's "continuous surface connection" standard. On which opinion should an administration base its regulation? It's not clear. Certainly, the Trump Rule's overwriting of the Clean Water Rule so it is based on the Rapanos plurality rather than concurrence represents a very substantial change.

Until the Trump Rule is formally adopted, whether the Act broadly or narrowly regulates activities will depend on the state in which the activity is located. The resulting patchwork implementation imbues the regulated community with incredible uncertainty. If adopted, the Trump Rule may bring certainty. But that will be short-lived. Why assume that the Trump Rule won't suffer the same fate as the Clean Water Rule? It will likely be tied up in litigation for years and repealed/replaced when the next Democratic administration takes office. Despite the Obama and Trump Administrations' efforts to attain clarity, uncertainty will persist.

II. TOTAL MAXIMUM DISCHARGE LOADS

The second major development under the Clean Water Act concerns the "total maximum daily load," or TMDL. What does TMDL mean? Much like WOTUS, the Act doesn't define it. Also like WOTUS, TMDL lacks any commonly understood meaning.

Generally, TMDLs are important because they tie point and nonpoint source pollution controls together. The Act generally leaves to states the primary authority for controlling nonpoint source pollution. Still, the federal government plays a role. The Act requires that states...