Posted on September 9, 2016 by William Green
Section 101(f) of the Clean Water Act (CWA) creates a “national policy” that “to the maximum extent possible” the Act “shall” be implemented in a manner that “prevent[s] needless duplication and unnecessary delays at all levels of government.” (33 U.S.C. § 1251(f)) Although this and the other overarching goals in § 101 of the Act were “no exercise in boilerplate rhetoric,” (William Harsha, Jr. (Ohio), Congressional Record 16520 (Jun. 3, 1976)) they are typically ignored. Instead of ignoring § 101 of the CWA, however, a strong argument can be made that courts should remand or even vacate an agency’s action if it can be shown that such an action needlessly duplicates or unnecessarily delays efforts to “restore and maintain the chemical, physical, [or] biological integrity of the Nation’s waters. (33 U.S.C. § 1251(a)) This would further Congress’s intent as codified in §§ 101(a) & (f) of the CWA.
Consider the ongoing controversy about the recent “Waters of the United States” rule (Rule). (80 Fed. Reg. 37,054 (Jun. 29, 2015)) Many have said much about this Rule, focusing on lofty constitutional arguments, erudite discussions of which and when Supreme Court opinions control, and the finer points of APA jurisprudence. But few have argued that the automatic implementation of its increased jurisdictional scope would contravene § 101(f). Because the Rule seeks to increase the federal government’s jurisdiction under the CWA, without more, coverage of the Act’s regulatory requirements would immediately attach to previously non-jurisdictional waters. This inextricable link of new jurisdiction and implementation could lead to disruptive delays and associated problems.
When, for example, the hundreds of ditches that form a sprawling municipal separate storm sewer system become jurisdictional, various implementation requirements would be triggered – noncompliance with which could lead to administrative and civil penalties and criminal liability. In this and many other instances, the sudden applicability of CWA requirements could have the unintended consequence of actually impeding ongoing efforts to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”
The shift of focus from traditional waters of the United States to stormwater conveyances could divert and dilute scarce local government resources. This could delay meaningful water quality improvements for the lakes and rivers people actually use to swim and fish, and use for potable water could become more difficult to attain and then sustain. Such delays would serve no environmental benefit and would be especially unjustified where local governments only use those stormwater conveyances for stormwater management or for treating discharges from them into traditional waters of the United States. Indeed, until promulgation of the Waters of the United States Rule, stormwater conveyances have historically been excluded from the CWA’s jurisdictional reach.
It thus seems that the directives of §101(f) should be taken into account in litigation judging the appropriateness of the Waters of the United States Rule. This would ensure that the Rule is implementable in a fashion that satisfies §101(f)’s common sense mandate to “prevent needless duplication and unnecessary delays” in furtherance of the fundamental goal of “restor[ing] and maintain[ing] the chemical, physical, and biological integrity of the Nation’s waters.”
William H. Green thanks Mohammad O. Jazil for his contributions to this post.