Dead in the Water: Clean Water Act Enforcement and Jurisdictional Uncertainty

Abstract

In 2014, the Environmental Protection Agency and United States Army Corps of Engineers released a joint proposal to redefine Waters of the United States, altering the scope of jurisdiction these Agencies have been granted within the Clean Water Act. The Agencies claim that through a looser interpretation of previous Supreme Court decisions, the proposal would drastically improve current U.S. water policy by lessening the uncertainty within CWA enforcement and compliance matters. Shortly thereafter, parties in opposition to the proposal began to voice their concerns. This included the American Farm Bureau Federation, who joined various other agricultural and manufacturing companies in the social media campaign encouraging constituents to Ditch the Rule. The campaign’s central focus was on the jurisdictional determinations of waters located on agricultural lands, claiming that the proposal was in direct violation of previous Supreme Court decisions. In an attempt to thwart the Agencies from what they believed to be a severe overreach of authority, legislative briefings were held in Congress June 2014. These briefings resulted in several bills introduced on the floor, including H.R. 5078 and H.R. 594, Waters of the United States Regulatory Overreach Protection Act of 2014 and 2015, respectively. While the Agencies on either side of the conversation issued various releases attempting to clarify the intentions and implications of the proposal, constituents were encouraged to submit questions and opinions during the extended open comment period. Comments were analyzed for this thesis and tend to have mixed opinions and levels of information regarding the proposal. This thesis explores both sides of the debate in order to determine potential implications of the Agencies’ proposal. Specifically, the goal is to identify the reasoning behind the proposal, as well as determine realistic potential consequences for both the agricultural industry and national water quality. This goal is met through in-depth examinations of previous legal and economic analyses, agriculturally oriented social media campaigns, descriptions of concerns voiced at legislative briefings, and an overview of the 2014 public comment period. This thesis examines one case study, water contamination in the Chesapeake Bay Watershed, to reveal the ecological, economic, and health implications of stagnant water policy. This case suggests that serious water policy reform is necessary in order to prevent significant consequences. These findings support the theory that the Agencies’ science-based proposed rule is in line with legal precedent and has the potential to drastically improve the nation’s waters.