Clean Water, Messy Language
Welcome back everyone, after a short July break I am ready to get back to it and continue the discussion. As promised, we are starting on a series that will give us a platform from which we can discuss topics of water quality, environmental protection, and governmental intervention in business.
A great starting point for a discussion about modern water quality, begins in the 1970's. It was the age of Nixon, Viet Nam, and the beginning of the Environmental Protection Agency. The modern day environmental movement was already alive and thriving, thanks in large part to our own native Pittsburgher Rachel Carson. Carson had published her book Silent Spring in 1962, amid a fierce outcry from pesticide manufacturers who were directly in the crosshairs of the book. The effect of the book's central demand for ecological awareness and protection still rings out today on a variety of environmental campaigns. The tone of change across the country, and the political need to update the existing structure of environmental protection laws lead to the creation of a suite of statutes. These laws address distinct problems including air pollution, water quality, toxic chemicals restrictions, and clean-up of contaminated lands across the country.
Of course I'd be overjoyed to talk about all of them, but sadly today I'll have to narrow it down to just the Clean Water Act.
Clean Water Act
To set the stage for future conversations, lets begin with a quick and dirty outline of the most essential bits of this large body of law. In just 3 simple sentences, the Clean Water Act makes a whole lot of activity illegal, and then turns around and tells us how we can get around being considered a criminal. Section 301 of the act breaks down to prohibit the (1) discharge of a (2) pollutant (3) from a point source (4) into a navigable water as unlawful activity, unless done within certain limitations. Sections 402(k) and 404(p) then compliments section 301(a) by establishing that these activities can be made legal under authority of a permit issued by an appropriate governmental agency. In these 3 simple sentences we have the statutory basis for the Environmental Protection Agency's (EPA) entire water quality scheme, as well as every state and regional program to regulate water quality.
Of course it seems far too good to be true that we can boil down water quality protection into 3 simple sentences. If there's one thing that lawyers love to take advantage of it's the inherent ambiguity in simple sentences of law. Each of the 4 points, or elements as attorneys would refer to them, I've numbered from Section 301 has its own legal ambiguity that has been exploded out into years of court battles. Following each court ruling, revisions by the EPA are released to illustrate how the agency interprets the language in making decisions. Lets take a quick look at one recent interpretation of just a single element from Section 301(a).
Waters of the United States
On June 29, 2015 the EPA published in the Federal Register a rule more commonly known as The Clean Water Rule: Definition of "Waters of the United States." This rule establishes the EPA's position on the definition of the phrase "Waters of the United States" for the dual purposes of making the Clean Water Act (CWA) more effective, and to help interested parties more easily understand the CWA's effect on their activity. Why is it necessary to explicitly define such a phrase that seems fairly simple, you ask. Leave it to the ambiguity of language to start some interesting legal battles.
To understand the confusion, we have to step back two steps to get to this point. The predecessor to the CWA, known as The Rivers and Harbors Act, was the first environmental protection statute passed by Congress. The statute outlawed obstruction or pollution of navigable waters or tributaries. Of course, legal battles established a means to define "navigable waters," and we ended up with the "Daniel Ball" test. Essentially the test states that a water is "navigable" if it can be used for normal commercial shipping purposes, if it is actually navigable, or if it is connected to commercial activity in some way. This created some obvious holes in waters that were not covered by the pollution protections. Along comes the environmental movement and the CWA.
The CWA was meant to compliment other statutes like the Rivers and Harbors act in what it protects and how it defines terms like this. In it's definitions section, the CWA defines "navigable waters" as "waters of the United States, including the territorial seas." Quite the helpful drafting by Congress on that one; that really makes everything totally clear. For the average person the response to "What is a Water of the United States" might seem fairly simple: any water body in the United States. Of course, the simple answer isn't always the correct one. In the decades that followed, a whole series of cases were decided on the question of defining those simple words. Most recently, the whole question was thrown for a loop with the U.S. Supreme Court decision in U.S. v. Rapanos. This case asked the question of whether wetlands not connected to surface waters or commercial activity can be considered "Waters of the United States." The Court's decision was not conclusive and left environmental organizations, corporations, and the attorneys they hire with several ways to define the word depending on which judge you listened to. The Clean Water Rule is designed to simplify the whole mess of definitions and tests, without changing any of the exclusions from the rule that already exist (such as agricultural runoff). I'll spare you the details it takes to explain the full rule, but if you're interested in understanding how terms like this are interpreted, check out the EPA's website on the rule.
For the average person, none of this has much effect on your life or how you spend your time by the river. For those organizations who focus on environmental protection and the businesses they monitor, it is an essential component of their work and risk management. For all involved, regardless of their interest, the Clean Water Rule adds a higher degree of dependability to the decision-making process.
The CWA was meant to compliment other statutes like the Rivers and Harbors act in what it protects and how it defines terms like this. In it's definitions section, the CWA defines "navigable waters" as "waters of the United States, including the territorial seas." Quite the helpful drafting by Congress on that one; that really makes everything totally clear. For the average person the response to "What is a Water of the United States" might seem fairly simple: any water body in the United States. Of course, the simple answer isn't always the correct one. In the decades that followed, a whole series of cases were decided on the question of defining those simple words. Most recently, the whole question was thrown for a loop with the U.S. Supreme Court decision in U.S. v. Rapanos. This case asked the question of whether wetlands not connected to surface waters or commercial activity can be considered "Waters of the United States." The Court's decision was not conclusive and left environmental organizations, corporations, and the attorneys they hire with several ways to define the word depending on which judge you listened to. The Clean Water Rule is designed to simplify the whole mess of definitions and tests, without changing any of the exclusions from the rule that already exist (such as agricultural runoff). I'll spare you the details it takes to explain the full rule, but if you're interested in understanding how terms like this are interpreted, check out the EPA's website on the rule.
For the average person, none of this has much effect on your life or how you spend your time by the river. For those organizations who focus on environmental protection and the businesses they monitor, it is an essential component of their work and risk management. For all involved, regardless of their interest, the Clean Water Rule adds a higher degree of dependability to the decision-making process.
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