A Modest Proposal to Fix WOTUS
Updated: Feb 25
As I have argued numerous times in the past, Congress needs to fix the WOTUS problem. They created it by so vaguely defining “navigable waters,” and only they can permanently fix the problem (assuming they stay within the bounds of the Commerce Clause). With each change in administration the regulated community gets whiplashed from one extreme to the other as Republican and Democratic administrations seesaw back and forth between different policy priorities. And years of extraordinarily expensive and time-consuming litigation have done nothing to settle the dispute.
So, how do we get Congress to step up? The Dems last tried it in 2008 when they had full control of Congress and the Whitehouse but couldn’t pull it off. Rep. Oberstar’s bill to codify the then-existing Corps/EPA definition of WOTUS never made it out of committee. Opposition from trade groups and, most importantly, the ag lobby, killed the effort.
But perhaps there is a way forward. The CWA has proven to be a very well-crafted statute, but it’s not perfect, and almost 50 years of implementing it has exposed some inherent flaws, WOTUS being one of them. One other is effluent trading. The Act is just not set up to allow trading. Trading, I believe, can be a good thing for the environment if done properly. (For a more thorough discussion, see my attached 2018 article on some of the problems with trading.)
Trading can play a significant role in reducing nutrient pollution, which is a huge problem in many parts of the country. The vast majority of the nutrients come from unregulated ag runoff. By setting up a verifiable mechanism to allow farmers to be paid to reduce their nutrient runoff while relieving some of the pressure on munies and others to reduce their nitrogen and phosphorous discharges to parts per billion would benefit both constituencies and the public.
And it might bring the ag lobby to the table on WOTUS. Ag needs to drop the hyperbole about land grabs with WOTUS. Ag is mostly exempt from the CWA, so the WOTUS definition really has little effect on ag producers. And we need to have a workable definition of navigable waters that protects our aquatic resources while balancing the legitimate concerns of the regulated community about ease of application and regulatory burden, and that is enshrined by Congress in the Act.
It’s a long shot, but something creative has to be done. The status quo is expensive, a waste of time and effort and will eventually be settled by nine men and women wearing black robes using a 1952 edition of Webster's Dictionary to decide what waters should be protected. We can do better.
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