Jurisdiction, pollutants, cost — what to do about water?

History shows that we have a short attention span where water is concerned. Or as Ben Franklin said, “When the well’s dry, we know the worth of water.” There are a lot of moving parts right now affecting water policy and regulation in the United States.

How and whether these developments are considered as part of a whole approach to water will define what our water profile looks like for decades to come. The developments come at a time when a 2017 Gallup poll reports that Americans are more concerned now about water pollution than they have been since 2001.

Jurisdiction

For starters, we remain unclear about the jurisdiction of water regulated under the Clean Water Act, a struggle that has been going on for the life of the now 45-year-old statute.

On Jan. 22, 2018, in National Association of Manufacturers v. Department of Defense, the Supreme Court ruled in a unanimous opinion that the federal district courts, rather than appellate courts, must  hear challenges to the 2015 “waters of the United States” rule. This rule, dubbed the “Clean Water Rule” by EPA, was intended to clarify this question.

On Feb. 6, EPA and the Army Corps of Engineers suspended the waters of the United States rule until 2020 to allow the agencies time to review and revise the rule before it takes effect. The suspension has been challenged in a complaint filed the same day by 11 states plus the District of Columbia. Similar suits were filed by environmental groups in district court in New York and in South Carolina. The suspension continues the application of the agencies’ pre-2015 interpretation of the term “waters of the United States” 2008 guidance documents, and follows the process set in motion by a February 2017 executive order directing the agencies to rescind or revise the waters of the United States rule.

Water transfer

The Supreme Court also decided on Feb. 26 , that it will not hear an appeal on the 2008 Water Transfers Rule, which was upheld by the Second Circuit. The rule allows transfers of waters from one body to another without a permit under the Clean Water Act if there is no intervening pollutant added through the transfer or a treatment.

Western states, which often are required to move water from one body to another to deliver much-needed water in the arid west, strongly supported the rule. The court’s decision puts an end, for now, to challenges to the rule that have been going on for almost 10 years.

Pollutants

Courts have been all over the map on whether and how discharges of polluted effluent through groundwater that subsequently flows to waters of the United States require a permit under the Clean Water Act.

In Hawai’i Wildlife Fund v. County of Maui, the U.S. Court of Appeals for the Ninth Circuit affirmed a district court ruling that the County violated the CWA when it injected polluted effluent into wells, a “point source”, which then flowed through groundwater as an “indirect discharge” of pollutants to the Pacific Ocean, a water of the U.S. That decision may be reviewed further by the Ninth Circuit and, ultimately, perhaps the Supreme Court. A similar case, Upstate Forever v. Kinder Morgan Energy Partners, is going the other way before the Fourth Circuit — they heard oral argument in December, and their decision, expected this spring.

Groundwater

The EPA is currently requesting public comment until May 21 on whether the agency should clarify previous statements about “pollutant discharges from point sources that reach jurisdictional waters via groundwater or other subsurface flow that has a direct hydrological connection to a jurisdictional surface water,” specifically which discharges are considered “direct.”

Jurisdictional waters, water transfers, and groundwater issues are but three examples — there are also proposed infrastructure plans, which affect water. All these developments create uncertainty about water policy and regulation. And they do not bring us any closer to figuring out how best to prioritize and protect the waters that matter to us all.

Cost

At one level, the Clean Water Act has enjoyed uncommon success. But the law was not enacted without challenge. Initially named the Federal Water Pollution Control Act of 1972, it was vetoed by President Nixon, over concern about the cost (then estimated at $24 billion). Yet Congress immediately overrode the veto by 52 to 12 in the Senate and 247 to 23 in the House, with members of both parties casting votes on each side, in a bipartisan atmosphere we now can only marvel at.

Tensions inherent in the Clean Water Act remain, 45 years later, centered on cost and jurisdiction. The two are inextricably connected. Costs to reach the statute’s audacious goals set in 1972 “to restore and maintain the chemical, physical, and biological integrity of the nation’s waters” are estimated to be in the billions, after billions have already been spent. How do we achieve these goals with what will always be limited resources?

Endangered species

Water policy and regulation also frequently intersect with consideration of endangered species, resulting in complex problems not readily addressed through litigation — where they always seem to end up. The policy implications go to the heart of several environmental statutes, not only the Clean Water Act but also the Endangered Species Act, the National Environmental Policy Act, the Safe Drinking Water Act, and a host of similar state statutes. There is always potential tension between state and federal authority when water is considered, despite the cooperative federalism that is the hallmark of the Clean Water Act and other cornerstone environmental statutes.

It seemed for a time that sustainability, with its triple bottom line of environmental quality, social responsibility, and profit, might become the tie that can finally bind American corporations, environmental groups, and regulators to grapple successfully with complex and seemingly intractable environmental problems.

But sustainability is falling short of its promise as a unifying principle — when asked, most Americans do not know what it even means, and companies embracing it are more likely than not to be accused of “greenwashing.” If we can reshape these views, sustainability’s marriage of economic principles with environmental and social goals could provide a foundation for all sides, even with continued scarce capital and continued competing priorities.

Kathy Robb is a partner in the nation’s first environmental law firm, Sive, Paget & Riesel.

The opinions expressed in this article are the author’s and do not necessarily reflect the views of the firm or its clients.