Spotlight on Economics: Defining waters of the U.S.

Farm Forum

The nation recently has given considerable attention to the Environmental Protection Agency’s (EPA) revised regulation that defines “waters of the United States” for the purpose of the Clean Water Act.

Despite the conflicting opinions and perspectives, and ensuing litigation, this brief point in legal history is an opportunity to remind ourselves of the basic functions of the three branches of U.S. government, a structure that has been in place for more than 225 years. It’s a structure that our ancestors established in the late 1700s and that many people have since fought and died to preserve.

The legislative branch (Congress at the federal level) consists of elected officials (senators and representatives) whose responsibility is to debate and establish public policy by enacting statutory law, such as the Clean Water Act. Enacted in 1972, it mandates that the nation’s water resources not be polluted.

Within most statutes, Congress directs which federal agency is responsible for administering that law. Congress, however, cannot enact a statute to regulate a problem that the U.S. Constitution does not authorize the federal government to address. Congress, therefore, indicated that federal jurisdiction over water pollution extends to “waters of the United States.”

The executive branch of the U.S. federal government, which is led by the president and consists of numerous agencies such as the EPA, is responsible for executing or administering statutory laws as directed by Congress.

In the case of the Clean Water Act, Congress directed that the EPA and Army Corps of Engineers implement the statutory law. The administrative agency then provides details as to how the agency will administer the statute by setting forth (promulgating) regulations. These regulations must be consistent with the underlying statute and the U.S. Constitution.

Someone who feels he or she has been harmed by a regulation because the regulation does not align with the underlying statute may initiate a lawsuit in which the court (the judiciary branch of U.S. government) needs to interpret the statute and regulation to determine whether the agency’s regulation aligns with the statute. If the court finds that the regulation does not align with the statute, the court will not allow the incorrect regulation to be administered. Instead, the agency will be expected to refine the regulation to align with the statute as interpreted by the court.

That is what happened in the case of defining “waters of the United States” in the Clean Water Act. The EPA regulation has been litigated numerous times in the past several decades, including at least three decisions by the U.S. Supreme Court interpreting the definition of “waters of the United States.”

The purpose of defining “waters of the United States” is to specify the jurisdiction of the EPA. The understanding is that pollution issues not regulated by the federal government are to be regulated by state government. Why the federal government had to get involved in pollution regulation in the late 1960s is another story and is not addressed in this article.

In these three decisions, the U.S. Supreme Court offered thoughts on its interpretation of the statute and some ideas as to how the EPA could refine its regulation to better align with the court’s interpretation of the statute. Based on this guidance, the EPA offered a refined regulation in mid-2015 that is to take effect in early fall 2015.

Already parties are disagreeing as to whether the refined regulation still violates the underlying statute. Some parties think the EPA has defined its jurisdiction beyond what Congress (and the Constitution) grants. Others feel that the EPA has not accurately defined the full extent of its jurisdiction.

Guess what? We are heading back to court for the judiciary branch to interpret whether the new regulation aligns with the underlying statute.

Another step that sometimes is taken in this process of interpreting and applying federal law is for Congress to amend the underlying statute to clarify its intent on the troublesome issue. Congress could clarify its definition of the “waters of the United States” and its intended jurisdiction of the federal government.

It appears that is not likely to happen, most likely because there is concern that it would be difficult for Congress to develop a definition that a majority of Congress and the president would agree upon. Thus, it appears Congress will not take an active role in clarifying this issue at this time.

Accordingly, the structure of U.S. government as set forth in our Constitution leaves us with the alternative of litigants arguing in court and imposing upon the judiciary to interpret the current statute and recent regulation.

This ongoing chain of events, although frustrating at times, demonstrates the functions and intertwined relationships among the three branches of U.S. government, a system that has worked since the late 1700s and in which many of us take pride. I hope the decisions made today can be a source of pride for our descendants 200 years from now.