Modernizing Water Regulation
Improving and protecting the nation’s water quality has been one of the hallmark achievements of the Environmental Protection Agency (EPA) and its Office of Water over the last five decades. The agency implements two significant federal statutes: the Clean Water Act (CWA) and the Safe Drinking Water Act (SDWA). This chapter focuses on the CWA.
The CWA generally regulates two types of activities: discharges of pollutants from “end of pipe” point sources (such as factories and sewage treatment plants) into navigable waterways, and placement of fill (i.e. soil and similar materials) into those waterways. The statute does this through a general prohibition on discharges without a permit from the EPA (or the US Army in the case of fill), then sets robust standards for those permits and backs them up with powerful enforcement methods based on strict liability (i.e. the government does not need to prove you intended a violation to impose enormous penalties on you). In the past five decades of CWA implementation, America’s water quality has seen significant improvements, for which we are rightly the envy of the world.
And yet, these improvements have been accompanied by decades of unnecessary harm to many Americans who have been subjected to improper and unjust permitting and enforcement actions by the EPA under the CWA, for ordinary activities that few normal people would consider discharges of pollution: growing crops, raising livestock, building homes, and developing water supplies for fire-fighting to protect the treasure of America’s National Forest lands. In part, these harms flow from the fact that while the most common kind of CWA regulation deals with point source pollution from industrial sources, the regulation of “fill” extends to many of these ordinary activities simply because they involve moving dirt around.
Mission creep
How has this come about? Mostly as the result of predictable, but unacceptable mission creep at the EPA. This mission creep started, as it naturally does in all regulatory agencies, with the reality that a single purpose mission for a regulator (e.g., keep the water clean) starts to look more and more like the purpose of the entire universe, and certainly the purpose of the EPA’s Office of Water. Clean water, as an aspirational goal, starts to feel to the regulator like the overarching purpose of the entire federal government, and not just one aspect of a high quality of life for those pursuing the American dream. There is little to no consideration of costs and tradeoffs. Perversely, to many regulators the American Dream itself looks like a threat to the environment, and – to some – even mankind appears like the ultimate invasive species.
Driven by this misguided vision, agency regulators have “crept their mission” in two ways. First, they have improperly expanded their footprint, i.e., what “waters” are regulated under the CWA and what actions in those “waters” are regulated. Second, they have turned the volume to 11 in the use of their enforcement tools, particularly against unsuspecting landowners who are the opposite of the stereotypical “polluting industrial factory” or sewage plant. In their quest to make the CWA the most important thing in every American’s life, EPA staff have tragically turned some of those lives into nightmares.
This is not what Congress established in the CWA. The statute identifies what “waters” are regulated (“navigable waters … of the United States”) and specifies a list of common-sense exempt activities that are not subject to EPA regulation, permitting, or enforcement. These portions of the statute reflect the policy decisions that Congress made when it enacted and amended the CWA, and the balance it struck between the economy and the environment. What the CWA does regulate is regulated very robustly: factories and sewage plants must exclude almost all pollutants from the effluent they release into rivers and lakes and the oceans. What the Act does not regulate, as properly interpreted, should simply be left alone: private property remote from rivers and lakes and the oceans; farming, ranching, and forestry; flood control; gravel roads; and the like.
When Congress made these decisions in the 1970s, it left some ambiguities around the edges. In the ensuing years, both the EPA and Army Corps exploited those ambiguities to facilitate their mission creep to pursue maximal environmental protection (and maximal economic disruption) in places and activities that Congress never intended. The agency “reinterpreted” the term “navigable waters” to include millions of acres of features that not only are obviously not navigable but are also not even “water” for more than a few weeks (or even days) a year.
As an example, private citizens paid millions of dollars in penalties and mitigation fees under the CWA for running a plow one time, in the late summer, through this patch of weeds:
Alongside such weed patches, the US Army Corps of Engineers (Army Corps) and EPA regulate drainages if they flow just a few months a year and they have frequently asserted authority over arid desert arroyos. Even stranger, the agencies consider the frozen tundra of Alaska to be “navigable” “waters.” Clearly, something has jumped the rails if this is what the federal government is doing under the CWA.
In addition to drawing circles around dry weed patches and sandy arroyos and calling them federal waterways, the EPA has also harshly limited the CWA’s exempt activities. For example, the statute exempts normal farming and ranching practices from regulation. This only makes sense: a federal fill permit takes months to years, and tens to hundreds of thousands of dollars, to obtain. A nation that requires its farmers to go through a multi-year permitting process to grow annual food crops will soon starve.
But EPA regulations limit the statute’s broad exclusion for farming to very limited circumstances. If a farmer changes operations in any significant way (say, switching from annual to permanent crops, or rotating in and out of conservation programs, or simply plowing the farmland on an irregular schedule) then the EPA sets the exemption aside and brings enforcement actions.
State role
The net result of expanding their power into vast swaths of private property around the nation (including mud puddles of a few weeks duration and the frozen wastes of Alaska), and the narrowing of statutory categories for exempt actions, is that EPA and its sister agency the Army Corps have wrongly taken on the role of local land use bureaucrats throughout the nation – a role that Congress never gave them and which profoundly squanders federal resources that should be focused on truly federal matters.
Local and state governments perform a wide variety of land use regulation activities, and they also generally protect the property rights of their residents, which rights are in many cases defined in state law. States also play a very important role in the management and regulation of water rights and water supply, and this state primacy has been explicitly respected and deferred to by Congress for 160 years, and this Congressional deference to state water regulation has been repeatedly recognized and enforced by the federal courts. The CWA explicitly preserves this state primacy, and the Supreme Court of the United States has enforced the CWA’s preservation of state primacy.
One of the most important areas in which the CWA endangers this state primacy is land use regulation. As noted above, many everyday “dirt moving” activities implicate the CWA’s regulation of dredged and fill material, threatening to insert the United States Army into the role of local planning commission and building permit approval board.
Clarity and penalties
These overreaching enforcement actions are harsher and more punitive because of other unclear provisions of the CWA. The Due Process Clause of the United States Constitution’s Fourth and Fifth Amendments protect citizens from being penalized without a fair hearing. But these protections are not spelled out in the CWA, and EPA enforcement staff use that silence to issue clean up and abatement orders and cease and desist orders, and threaten penalties, without affording even basic due process rights to the targets of their enforcement actions.
Speaking of penalties, the CWA authorizes daily penalties for violations and sets a very high daily penalty amount (currently $66,713). But the CWA does not clearly specify what sorts of violations are appropriate for a single penalty and which types of events warrant daily penalties. The EPA uses this ambiguity to impose daily penalties where a single fill event takes place: The EPA imposes a penalty for every day the fill remains in place, even though only one event ever happened.
Citizens face enforcement litigation not only from government agencies. The CWA provides broad power for random members of the public to file private enforcement actions against alleged violators and recover attorneys and expert fees as well as impose penalties and injunctive relief on alleged violators. In many parts of the country this has resulted in cottage industries of shake down artists with little or no stake in whether a particular facility is polluting or not, who can sue over whether a company’s paperwork is in order without ever even alleging any harm to the environment.
For those who do seek permits for fill activities, a daunting gauntlet awaits. Twenty years ago, a permit to fill waters regulated by the Clean Water Act took years, and hundreds of thousands of dollars in consulting fees, to obtain. In two decades since, these costs and delays have only escalated. This may seem appropriate for filling part of San Francisco Bay to add a runway at an international airport. But it is not a rational permitting scheme for building a few houses or widening a country road or planting a vineyard. The CWA does allow for simpler and less expensive nationwide permits (i.e. they “only” take months – and tens instead of hundreds of thousands of dollars – to obtain). But agency practice has turned even these tools into regulatory quagmires that are only available in increasingly narrow circumstances.
If the cost and hassle of permitting were not enough, the Act adds an additional permit layer for any Clean Water Act permit: applicants must also get a state “certification” (Section 401 certification) before they can secure a federal permit. The burden of this duplicative process varies from state to state. Many states have begun to use their certification authority to impose significant non-water quality-based limits on projects seeking federal permits under the CWA.
And once a fill permit is issued by the Corps, the EPA can come in later (after the applicant or permit holder has spent considerable resources in reliance on the permit) and veto the permit retroactively.
The next section of this chapter details key issues for Congress to address that will help to modernize water regulations. For each key issue, there are specific recommendations for Congress.
Key issue
Restrict EPA regulation of non-navigable waters and transitory water features under the CWA
The first improvement Congress can make in the CWA is to take appropriate steps to focus EPA and Army Corps attention on protecting truly federal waterways: those that are in fact navigable and which connect the states and foreign nations in commerce. Congress has two ways to do so: amending the statute itself or using its oversight and appropriations powers to properly control the EPA and Army’s mission creep in this area.
Navigable waters
Many of the problems described earlier derive directly from a very odd formulation used in the CWA to define what waters it regulates. For well over 100 years in prior statutes, Congress used the phrase “navigable waters of the United States” to clearly define what waters it was protecting and regulating. This term had a long established and well understood (and appropriately limited) meaning that restricted congressionally authorized action and projects to those rivers and lakes that support interstate commerce, while leaving to states the responsibility and authority to regulate other waters within the states in the manner they best determine.
But when it adopted the Clean Water Act in 1972, Congress made an odd choice. It separated the term “navigable waters of the United States” into two different locations in the statute. One section of the Act refers simply to “navigable waters” while a different definitions list defines “navigable waters” as “waters of the United States, including the territorial seas.” This separation of the two parts of the phrase has been taken by the federal courts for decades to mean that Congress means to regulate a broader footprint under the Act than it previously had in the Rivers and Harbors Act and other statutes. But it is not clear that this was Congress’s intent, and there is far more evidence in the Congressional Record that Congress had no interest in broadening the scope of federal action on water quality. One possible reason for the unusual structure may have been to include the territorial seas, which historically were not part of the expression “navigable waters of the United States.”
Nevertheless, the Supreme Court has repeatedly observed that the CWA’s novel arrangement of the words suggests some intent to regulate more broadly than navigable rivers and lakes and the oceans, but that the statute is close to worthless in informing the courts, the agencies, and the public as to just how much more broadly the construct might apply.
And EPA and the Army Corps have long taken this odd phrasing as a license to issue regulations that broadly include all manner of terrain features as federally regulated “navigable waters” under the CWA that are not only not “navigable” but are rarely even “water.” Over time, the agencies have developed some key regulatory concepts as a framework on which to build their empire of mission creep. These include the classification of non-navigable tributaries as perennial, intermittent, and ephemeral, and various types of “adjacency”: physically abutting, “across the road,” and “in the neighborhood.” Agency standards for a water feature to “neighbor” another have been notoriously lax and include efforts to regulate any wet feature within 1000 yards of another regulated feature.
The Supreme Court, for its part, has more recently added an overlay of requirements for the CWA to apply, by interpreting just the word “waters” to include only hydrologic features that are relatively permanent and continuously flowing and that in ordinary English would be referred to as rivers, lakes, or streams.
All of these complex terms derive from Congress’s perplexing decision in 1972 to separate the words “navigable waters” from “of the United States” in the CWA. And the complexity of the resulting regulatory and judicial effort to make sense of the separation has meant half a century of litigation, enforcement, prison sentences, obscene permitting costs and restrictions, delay and outright prevention of projects, disruption of prevailing state-federal relations, and on and on, all because nobody can quite sort out what “waters of the United States” means in isolation from the word “navigable.”
Congress could remove this confusion with the simple step of reuniting the two parts of the phrase in one place in the statute, making obvious that the legislature means no more than it ever has as to the scope of federal regulatory activity on waterways. This can be implemented by amending the definition of “navigable waters” to read “means navigable waters of the United States, including and the territorial seas.”
“Adjacent”
The CWA’s operative jurisdictional provision references only waters. It does not mention wetlands. However, seizing upon a passing reference to adjacent wetlands in an ancillary provision of the CWA, Section 404(g)(1)), agency regulations have for decades regulated “adjacent wetlands.”
Courts have long struggled with what “adjacent” means in this context, although the Supreme Court’s 2023 Sackett v. EPA (Sackett II) decision limits regulation of wetlands only to those that are as a practical matter indistinguishable from, other regulated waters. While the decision unanimously rejected the long-standing agency interpretation that “adjacent wetlands” include anything with a “significant nexus” to rivers, lakes, and the oceans, a four- justice concurrence in Sackett II wrote that adjacent should include wetlands that are “across the road” from other regulated waters, and many legal scholars have long argued that adjacent should include wetlands even farther afield.
EPA argued at the Sackett II hearing that “adjacent” could mean even a mile away. Although that argument was squarely rejected by the Sackett II majority, current agency regulations appear to take the position that “adjacent” wetlands include those with occasional water flow through a long series of “daisy chained” non-regulated features like culverts, ditches, drains, and the like, which may take miles to connect the wetland (however infrequently) to some other regulated water. Indeed, in litigation over their current regulations, the agencies have argued expressly that notwithstanding the decision’s clear language, Sackett II does not limit their authority to wetlands that are “indistinguishable” from covered waters (rather relying upon a bare surface physical connection, however remote from other regulated waters). And the agencies have continued to pursue landowners for filling even wetlands with no water connection to covered waters, whatsoever.
This follows a familiar pattern, observed by the Supreme Court and other courts: After every loss sustained by the agencies, instead of executing the clear directions set forth by the Supreme Court, the agencies have sought to preserve and even expand their own authority in spite of the court rulings, and when challenged, have attempted to relitigate issues definitively resolved against them.
Recommendations for Congress
Restore the traditional and clear definition of “navigable waters.” Congress should clarify the confusion described earlier (i.e. the standard term of art “navigable waters of the United States” is separated into two different sections of the CWA) with the simple step of reuniting the two parts of the phrase in one place in the statute, making obvious that the legislature means no more than it ever has as to the scope of federal regulatory activity on waterways. This can be implemented by amending the definition of “navigable waters” to read “means navigable waters of the United States, including and the territorial seas.”
Properly define adjacent. Congress could put a stop to the confusion surrounding the term “adjacent” by defining adjacent in the statute to cover only wetlands “(i) with a continuous surface water connection to covered waters and (ii) that are as a practical matter indistinguishable from such waters,” so that it has the same meaning as the Sackett II majority, and put to rest the long running back and forth over how far afield from actual boat-floating navigable water the EPA and Army can go, with the agencies claiming authority to tell landowners and private citizens what they can do with their mud puddles.
Pursue other options to clarify the statute. Barring these two amendments, Congress has additional approaches to amending the CWA that may result in similar improvements in clarity. These include adding a provision to the definition of “navigable water” that limits its applicability to hydrologic features where standing or flowing water is ordinarily present on the surface for more than 270 days annually. A second alternative is to limit the application of the definition in the statute to waterways that are used or capable of use for transporting goods in interstate or international commerce.
Use oversight and appropriations. Absent amendments to the statute (which do admittedly face cloture hurdles in the Senate), Congress can also restrict the worst of the EPA and the Army Corps’ geographic overreach through oversight hearings and appropriations bills focused on wetland regulation. A primary focus should be on ensuring that the agencies are writing and implementing rules that are consistent with Sackett II. This oversight is necessary since the agencies continue to interpret “adjacent” very broadly, well beyond that allowed by Sackett II. In a 2023 regulation, issued just a few months before the Sackett II decision, the EPA and the Army Corps interpreted “adjacent” to include wetlands connected by “daisy chains” of ditches, swales, pipes, culverts and the like to rivers and lakes even miles away. The agencies then endorsed this “daisy chain” approach as implementing the Sackett II holding that only physically abutting wetlands are regulated by the CWA.
Oversight hearings should focus on how the agencies are interpreting “navigable waters … of the United States” and highlight the absurdity of the worst abuses in this area, using concrete examples of ordinary citizens who have been forced to pay large penalties to resolve alleged violations that have nothing to do with any navigable water body.
These oversight hearings can then inform the appropriations process, in which Congress can restrict the use of enforcement funds to situations in which alleged violators have discharged to or filled waterways that are in fact navigable and relevant to movement of goods in interstate commerce.
In favorable circumstances, the Congressional Review Act could also be used to overturn new agency regulations that continue to interpret “navigable waters” overbroadly.
Key issue
Put the exemptions back in the exemptions
Section 404(f) of the CWA lists several ordinary activities which Congress exempted from Section 404 regulation, permitting, and enforcement. They include normal farming, ranching, and forestry practices, flood control structure repair and maintenance, construction and maintenance of farm and stock ponds and irrigation and drainage ditches, and construction and maintenance of farm and forestry roads and temporary mining roads.
Agency regulations, however, limit the applicability of the exemption for farming practices to a narrow range of cases, by reading “normal” to mean, in effect , “routinely done on this farm.” This limitation subjects many farmers and ranchers to crippling penalties for unwitting violations of the regulations.
The exemptions are also limited in the statute by subdivision 404(f)(2), which is known as the recapture provision. This provision nullifies the exemption for actions whose purpose is to convert regulated waters to a new use under certain conditions. This provision is not a model of clarity, and Agency regulations and enforcement practice, along with judicial decisions, have taken the view that most of the exempt normal farming practices like plowing nonetheless are not exempt because of subdivision 404(f)(2).
Recommendations for Congress
Make the exemptions more robust. Congress can improve the farming exemption by defining “normal” to include:
Customary, standard, or frequent, on either a particular farm as established by the property owner, or in a farming region as determined by the applicable county farm advisor
Congress should clarify (f)(2) to make clearer that it only applies where traditional navigable waters are put to a use to which they have never been put before, that any farming use is a “use to which they have been put before,” and that merely changing the hydrology of soil (i.e. rates of run off and absorption) does not trigger (f)(2).
Congress should also use its oversight and appropriations authority in a similar way, to bring to light agency abuses of the statutory exemptions and restrict appropriated funds for being used for enforcement actions on exempt activities or implementation of regulations that improperly narrow the exemptions.
Key issue
Require compliance with due process norms
The CWA allows EPA and the Army Corps to issue cease and desist orders and clean up and abatement orders. These orders have significant real-world consequences, because a citizen is liable for additional penalties for refusing to comply with an order under the Act. The result of this is that an enforcement target will frequently learn for the first time through either a cease and desist or clean up and abatement order from EPA or the Army that they may have violated the CWA.
These orders routinely threaten massive civil penalties and criminal penalties including multi-year prison terms for refusing to comply with the order. The alleged violator is then faced with the perhaps impossible choice of challenging the decision in court, if they have the resources to do so, or knuckling under and complying with the order to avoid further liability. This dilemma exists because the agencies have no statutory duty to provide targets with any due process before issuing administrative orders.
Fixing this problem should be a particular priority of Congress because of how court review of administrative orders works. In any legal action to challenge an agency decision under the Administrative Procedure Act, courts are generally required to defer to agency fact-finding. This means that if there is anything in the record of the agency decision that supports the facts that the agency determined to be true, the court is required to rule for the agency on that point. But the lack of due process protections for enforcement targets means that the agency can control the entire development of the record and make its factual determinations and issue an order before the target even knows that there are any factual disputes on which he or she may submit evidence – before the target even knows of the need to defend him or herself.
This process violates fundamental concepts of fairness and opportunity to defend oneself that are enshrined in the Due Process clauses of the US Constitution’s Fourth and Fifth Amendments.
Recommendations for Congress
Provide Americans with the due process protections they deserve. Congress can restore these Due Process Protections in a very simple way, by amending the CWA’s authorization to issue such orders in 33 U.S.C. sections 1319(g)(1) and 1344(s)(1) (compliance orders from the Army for violations of fill permits) to include the three words “after a hearing:”
Section 1319(g)(1): “Whenever on the basis of any information available after a hearing …
Section 1344(s)(1): “Whenever on the basis of any information available to him after a hearing the Secretary finds that any person is in violation …”
The invocation in the statute of the right to a hearing before EPA or the Army may issue an administrative order then invokes other provisions of the United States Code that provide the details for how such hearings are to be conducted.
Key issue
Make penalties rational and proportionate
CWA penalties are too high, too cumulative, and too disproportionate for many alleged fill violations. The maximum daily penalty as of 2024 is $66,713. Penalty levels increase annually based on inflation levels. And they apply “per day for each violation.” EPA and the Army take the position that a daily penalty is appropriate for alleged fill violations for each day that the fill remains in place, as though each day is itself a new discharge of fill. This can result in maximum daily fines in the tens of millions of dollars if the agency takes a mere five months to investigate and issue a remedial order, before the enforcement target even knows that there might be a need to remove the fill. And removal of fill without agency permission may result in further violations. If the agency initiates civil enforcement action in federal court, it can take years for the matter to be resolved, all the while the target is limited in the ability to remove the fill, but potential fines are accruing at more than $66,000 daily. If the alleged violation is based on something innocuous like a farming practice that EPA claims is not “normal” or the construction of a single-family home, the maximum daily fines are almost immediately out of all proportion to any harm done to the environment.
Recommendations for Congress
Congress can significantly improve this state of affairs with four actions.
Eliminate annual inflation increases for daily penalties. Inflation is harming American families in many ways every day. It is particularly perverse for the government to benefit from inflation in food, gas, housing, and tuition prices when it enforces environmental laws that have nothing to do with those markets.
Limit fill violations to one and done. Congress can amend the statute to make clearer that penalties for alleged fill violations apply only to the fill event, and do not accrue daily merely because the fill remains in place.
Reduce penalties for non-polluting activities. Congress would do well to set out lower penalty rates for activities within the categories for which the statute provides exemptions, even if they do not qualify for the exemption. This would restore a level of proportionality to the penalty regime.
Protect “innocent landowners.” Congress should amend the CWA to provide that no cease and desist order, clean up and abatement order, or penalty may issue to a private landowner for alleged discharge of dredged and fill material on that person’s private property before the agency has provided the landowner with a final delineation of regulated water features on the property and allowed the landowner to challenge that delineation administratively and in court.
Key issue
Improve liability standards and citizen suit provisions
Enforcement targets face significant liability for alleged violations of the CWA. This is made more challenging by the fact that especially for non-criminal violations, the government does not need to prove that the alleged violator even knew that the Act exists, or any regulatory or permit restrictions on their activity. For commonplace activities like farming, homebuilding, road development, and the like, the result can be enormous liability for everyday activities that no normal person thinks of as “pollution,” and that comes as a complete and unfair surprise to the alleged violator. The ambiguities that the agencies continue to foster over what water features are regulated, and how the exemptions work, adds further surprise and unfairness to the enforcement of the Act – enormous penalties can be imposed on people with no notice that they may be breaking the law. It is the archetypal trap for the unwary.
This state of affairs is amplified by the CWA’s wide allowance for citizen suits, under which anybody can file an action in federal court against any person over ongoing alleged violations of the Act. In a citizen suit, the successful plaintiff can force the target to pay significant fines to the government, remove fill and demolish a project, make mitigation payments, and pay for the successful plaintiff’s lawyers and experts. Citizen suit plaintiffs do not have to demonstrate any personal harm to them from the violations they allege, only a generalized interest in the environment in which the defendant operates. And citizen suits do not need to even be about illegal discharges to the environment. Courts allow citizen suit plaintiffs to sue ordinary citizens and businesses over “paperwork violations” in which the plaintiffs allege that the defendant failed to properly complete forms or submit them on time, even without any harm to the environment. This statutory regime has encouraged the development of local cottage industries of professional citizen suit plaintiffs.
Recommendations for Congress
Congress can address both of these problems with targeted amendments to the statute.
Provide clear notice to landowners before citizen suits may be filed. First, the liability standard can be improved to ensure adequate notice to landowners and operators of their responsibilities under the law. If someone already has a CWA permit, that permit process should put them on notice of any future event that might violate the permit. But for alleged unpermitted violations, the statute should (1) require the agency to notify the target of CWA requirements, (2) allow an opportunity for the target to contest agency authority over the feature in question and whether the activity is exempt or not, and (3) then, if the final determination of authority and exemption are resolved in favor of the Agency, only impose liability for alleged violations going forward from that determination. This would allow ample power for the agencies to impose clean up and abatement requirements for illegal fill once the determinations are made but would prevent the imposition of penalties for actions taken before the alleged violator was on notice that their action was illegal.
Improve the citizen suit provisions of the CWA. Second, Congress can improve the citizen suit provision of the CWA by adding four requirements. First, to file a citizen suit the plaintiff must allege some personal injury recognized by common law, such as trespass or nuisance to private property owned by or personal injury to the plaintiff. Second, citizen suits may not be brought over mere “paperwork violations.” Third, citizen suits may not be brought for the alleged violation of fill permit requirements if the Agencies have not determined their authority over the water feature and potentially exempt activity at issue, with the target defendant having been afforded notice of such determination beforehand and an opportunity to be heard on the matter (see the earlier discussion regarding due process standards). Finally, successful defendants should be able to recover their own attorneys’ fees and expert costs from professional CWA citizen suit plaintiffs (e.g., any CWA citizen suit plaintiff who, either individually or through related parties, had filed more than two CWA citizen suits in the prior five years).
Key issue
Reform nationwide permits
As mentioned earlier, the permitting process is extremely onerous. It requires significant consulting support, takes months to years to complete, and requires compliance with the National Environmental Policy Act (NEPA) requirement for an environmental impact report and can fall under the Army’s duty to consult with the Fish and Wildlife Service under the Endangered Species Act (ESA). All of this bureaucracy adds time and cost to the process and imposes limits on the applicant’s ability to carry out the intended project. The permit process requires consideration of alternatives to the desired project that avoid, minimize, and/or mitigate the impacts that the project would have on regulated water features. As of two decades ago, such an individual permit took years to complete and required over $250,000 in consulting costs.
One of the ways that the CWA allows for streamlining this burdensome process is through the issuance of nationwide permits. These are “off the shelf” permits for many routine activities that include common sense environmental protections for the activities while also recognizing the importance and frequency of these activities for everyday life and the economy. But NEPA and ESA bureaucracy has hampered the Army’s ability to renew these nationwide permits on a timely basis and has gradually eroded their utility as other concerns result in reduced scope of the permits and reduced ability for projects to enroll in them. The nationwide permits for homebuilding and non-exempt farming activities in particular are of very little value because of the small acreage they apply to.
Given the importance of food and housing to any people, Congress should especially improve the CWA’s provisions for nationwide permits that allow more streamlined regulation of food and housing production. For example, many areas of the country are currently experiencing housing shortages that have made housing costs unbearable. They need to be able to build more housing. But the nationwide permit for homebuilding is limited to half-acre projects. This may allow individual property owners (usually the more affluent, building custom homes) to move through permitting more easily, but is completely inadequate for the production of commodity multi-family and single-family housing where it is needed.
Recommendations for Congress
Remove bureaucratic limitations from nationwide permits. Congress can and should amend the CWA’s allowance for nationwide permits by expressly exempting such permits from NEPA and the ESA. This exemption could, for policy preferences, be limited to specific categories of nationwide permits such as food, housing, and energy production and transportation infrastructure. But for nationwide permits to be of more than trivial value, the Army needs to be able to make them available for larger acreage and a wider range of projects, and NEPA and the ESA stand strongly in the way of that reform.
Extend the availability of nationwide permits. Congress should also require that nationwide permits be made available for food and housing production without regard to acreage, or within certain acreage limits that are much higher than are currently allowed. Further, Congress should make nationwide permits available for a broader range of activities than currently covered by nationwide permits.
Key issue
Reform the Section 401 certification process
If the Corps’ fill permitting scheme, described above, were not enough, the Act also imposes a parallel state permit, what is known as a “401 Certification.” The CWA requires applicants for a federal permit to obtain this parallel sign off from their state as a way of making sure that uniform federal standards do not undermine stricter local standards in a very few states. This advances important federalism objectives, and the burden of parallel state permitting varies around the country depending on state level priorities and policy preferences. In an important general sense, state level decisions about whether to demand more than uniform federal standards in a wide variety of areas, not just the environment, is a way that states compete with each other for residents and businesses.
However, states should not be able to leverage federal permit processes to pursue state policy goals unrelated to the federal permit, especially if those state policy goals are informal (i.e. are not required by existing state law). Instead of being a basis for fair interstate competition, this practice uses federal law to pursue “informal” agendas that may not even be required by state law. One example of how states have misused their Section 401 Certification authority is how the State of Washington has impeded the federal permitting of an energy export terminal on the Peugeot Sound by loading its 401 certification for the federal water quality permit with several state conditions that are not related to state water quality law, some or all of which are not required or even possible under state law. This includes the state considering factors like vehicle traffic, train noise, and rail safety to block the project.
Other examples include California state regulators including multi-million-dollar environmental restoration projects as conditions in Section 401 certifications where the restoration project is not related to the ongoing operations that are being federally permitted, but instead is motivated by long past perceived misdeeds (in this case dam construction and water diversion) that the state had previously allowed.
Congress should not let its federal permitting processes be repurposed by states to achieve goals that state law does not sanction and should not allow states to expand the Section 401 certification process beyond what the statute envisions: confirmation or not that the federal permit meets existing state water quality standards.
The Biden administration finalized a Section 401 certification rule that would allow states to block projects through the Section 401 process even for reasons that have nothing to do with discharges, point sources, or navigable waters. The CWA is focused on discharges from point sources into navigable waters, yet there are efforts to allow state certification to go beyond even these foundational requirements of the CWA permitting process.
Recommendations for Congress
Clarify the limits of state 401 certification authority. This can be accomplished by amending the statute to clarify that the state certification may only state whether the federal permit would comply with existing state water quality law. The amendment would consist of the following new sentence at the end of existing Section 401:“A proposed state certification that, in the determination of the Administrator and which determination shall constitute final agency action on the subject, includes provisions unrelated to state water quality standards in effect at the time of the application for the federal permit, shall be deemed a waiver of the certification required by this section.”
Further, the language should make it clear that Section 401 certification does not give states the power to review matters that exceed what the federal government itself may review in terms of permitting. Specifically, Congress should make it clear that certification applies to discharges only, from point sources only, and only those point source discharges that go into navigable waters. The House of Representatives passed H.R. 1, the Lower Energy Costs Act, in March of 2023, which amends Section 401 in a manner to address many of these concerns.
Key issue
Eliminate the EPA’s veto of Army permits
A final priority for Congressional reform of CWA permitting includes making sure that permit applicants who have run the gauntlet of fill permitting with the United States Army and the applicable state certification for that federal permit, are in fact done with CWA permitting. But the same Act that requires applicants for fill permits to apply for and get that permit from the United States Army, Section 404(b), allows the EPA to then veto that permit, Section 404(c). EPA can even preemptively close off certain areas to any future permitted fill activity under the same statute.
There is no policy justification for this additional layer of bureaucracy. If the Army is the right federal agency to decide on and issue fill permits, then one federal agency should be enough for applicants to deal with. The addition of the EPA veto adds uncertainty to important projects and introduces an additional element of political gamesmanship for the government that is easily abused by EPA officials who may have personal and policy reasons to reject projects that meet all legal requirements and are fully permitted by the Army.
Recommendations for Congress
Eliminate the EPA permit veto. Congress should amend the Clean Water Act by eliminating the EPA veto for Army fill permits, by deleting 404(c).
Conclusion
The Clean Water Act is one of the fundamental pillars of federal environmental law and has done much good for Americans and their environment. But nothing is perfect; all good laws can and should be improved in the light of experience. Some of the assumptions about how EPA and the Army Corps would use (or misuse) the authority entrusted to them by Congress have proven ill founded. And some of the tools in the Clean Water Act have proven ill-suited to Congress’s purposes. Congress should be mindful that EPA and the Army Corps may exercise only that authority granted to them by Congress. And the federal government must exercise its powers with due regard for the rights of all citizens.
The recommendations to improve the Clean Water Act flow from these principles. Congress can and should improve the Act in light of five decades of improving water quality and administrative experience. Congress should take seriously that agencies have their own purposes and agendas generally (the EPA and Army Corps are not extraordinary in that regard), and that it is Congress’s role to keep agencies in their proper lane through statutory limits and active oversight. And the civil rights of American citizens must always be protected and respected. Nobody faces a dilemma between clean water and American values – adopting these recommendations will advance both causes.