By David Saxowsky
The Waters of the United States (WOTUS) is back in the news. That should be no surprise.
In its simplest terms, WOTUS is a federal regulation defining which water bodies are subject to the federal Clean Water Act (CWA).
Congress enacted the CWA in the early 1970s to address the nation’s water pollution problem. The U.S. EPA and the Army Corps of Engineers (Corps) are two federal agencies with primary responsibility for implementing the CWA.
As Congress generally does, it writes a statute, such as the CWA, in broad terms — with the expectation that the administering agencies of the executive branch of the U.S. federal government (EPA and Corps in this situation) provide the needed details by developing one or more regulations. One challenge is to prepare regulations that align with the congressional intent of the statute.
Regulations and statutes
A person or entity may commence a lawsuit against the federal agencies if the person or entity feels that its rights have been infringed upon by a regulation that does not align with the underlying statute. That is what has occurred with the WOTUS regulations.
The EPA and Corps proposed a regulation in 2015 to more clearly define the scope of the CWA. Several states (including North Dakota), and other entities and people, sued, based on the argument that the proposed regulation did not align with the intent of the statute. The courts agreed and ordered the EPA and Corps to discontinue implementing the new WOTUS regulation.
President Donald Trump subsequently ordered the two agencies to withdraw the proposed regulation, resume enforcing the prior regulations, and then study and develop a new regulation that provides a clearer and more appropriate definition as to the scope of the CWA.
That brings us to now. The EPA and Corps have withdrawn the proposed WOTUS regulation and are taking steps to resume administering the previous regulations. The two agencies envision developing new regulations thereafter that, they hope, will provide a clearer explanation of the scope of the CWA.
This is not the first time that the EPA and Corps have attempted to clarify the scope of the statute. Nor is this the first time that the courts have been called on to assess whether the regulation aligns with the statute.
The executive and judicial branches of our federal government have not been ignoring this issue of defining the scope of the CWA. Defining the scope of the CWA has been an ongoing issue for most of the years since the CWA was enacted in 1972.
An alternative to having the agencies try again would be for Congress to review and refine the CWA: that is, provide more clarity in the underlying statute. This would not be an easy task for the legislative branch to take on, but it is an alternative to having the agencies propose another regulation, and likely have the courts decide whether the proposal aligns with a statute — of which no one, apparently, really knows the definition.
What's the role of the states?
Another set of players in administering water pollution laws is state governments. Technically, states are responsible for defining and regulating property rights; this responsibility includes protecting the environment.
What was clear in the 1960s was that the states were reluctant to take steps to protect the environment, so Congress stepped in by enacting the National Environmental Policy Act (NEPA) in 1969 and additional environmental laws in subsequent years, including the CWA.
Someone had to address environmental concerns. But to keep the federal government from totally usurping states’ responsibility and authority, Congress provided in many of the environmental laws (including the CWA) that states can impose regulations, as long as the regulation is no less stringent than the federal standards.
Accordingly, state legislatures may have room to step in and do what they were reluctant to do 50 years ago.
The bottom line: The WOTUS is not a done issue. The scope of the CWA still needs to be defined. The nation is taking the path of having the federal agencies try to guess again as to the congressional intent of 1972, and then rely on the courts to decide whether the agency regulation has “hit the target” this time.
The alternative is for Congress to step forward to refine the language, based on its observations of what the nation has learned during the past 45 years. The state legislatures also can take a role in setting this environmental policy.
Forty-five years of the executive and judicial branches trying to figure the intent of the legislative branch should be a signal that the legislative branch should step back into the fray to provide legislative leadership.
Saxowsky is an associate professor in the North Dakota State University Agribusiness and Applied Economics Department.