The Repeal of WOTUS and America’s Legal Lacuna on Water

This week the Trump Administration announced it would finalize the repeal of a once-obscure, now near-infamous, regulation known as the Waters of the United States rule, or WOTUS. For conservatives, WOTUS has become a posterchild for federal regulatory over-reach: put in place by the Obama Administration, the rule dramatically expanded Washington’s oversight of small streams, wetlands, and other waterbodies, allowing it to potentially stop farmers from using pesticides and fertilizers on their land. For liberals and environmentalists, meanwhile, repeal of WOTUS is another sign that the Trump Administration favors corporate polluters over the planet.  

The real issue with WOTUS is that the United States still lacks a clear set of legal and regulatory authorities to deal with water. When the U.S. Constitution was drafted in the stifling summer of 1787, issues like water pollution were local, not national, concerns – a few decades before the convention took place, Benjamin Franklin urged the city of Philadelphia to ban tanneries, on the grounds they contaminated the water supply and spread disease. Given this local focus, protecting the planet never made it onto the constitution’s list of powers given to the federal government. Instead, like most everything the modern U.S. government does, Washington’s authority to control water pollution rests on a broad interpretation, continually expanded over time, of its constitutional power to regulate interstate commerce.  

In the case of water, this power has been held by the courts to extend to navigable waterways like the Mississippi, the Ohio, and the Hudson – and, more dubiously, to mostly unpassable bodies like the Colorado. Despite its unsteady legal underpinnings, over the past hundred-odd years the federal government has used this power to great effect, protecting tens of millions of people from floods, piping water to hundreds of thousands of farmers in the parched southwest, and providing clean water to nearly every single American.   

But all this progress has come at a price: legitimacy. Because Washington’s power to protect water supplies, and the environment more generally, is mostly implicit rather than explicit, it has continually faced political and legal attacks. Even well-established, and politically-popular, environmental laws like the Clean Air Act are periodically challenged in the courts. These challenges threaten serious harm to America’s environment: in the early 2000s, the Clean Air Act was nearly struck down for ceding too much of Congress’s authority to the Environmental Protection Agency (EPA). Had the Supreme Court not intervened, the U.S. would have been effectively left without any legal authority to fight air pollution, causing untold damage to human health and the environment. 

The repeal of WOTUS leaves Washington in a similar situation when it comes to clean water. The rule’s rationale – that the federal government has the ability to regulate land use and other actions that affect water quality far from major rivers – underpins any serious effort to control the remaining major sources of water pollution, which include runoff from farmland, suburban lawns, and other diffuse sources. Yet because the rule’s legal authority is so arcane, it lacks any kind of legitimacy in the eyes of the farmers and rural landowners who it would primarily affect. When it comes to protecting the planet, legal sleights-of-hand have replaced the slow, but more sustainable, process of building political consensus.   

To protect America’s water for future generations, we need to bridge this legitimacy gap. Doing so requires us to embrace economic and political carrots as well as regulatory sticks. In tackling water pollution, for example, financial incentives can be more politically popular, and environmentally effective, than regulation. Some countries and regions have enjoyed success using programs that pay upstream water users like farmers to use fewer pesticides and fertilizers – this is usually cheaper than dealing with pollution further downstream, and easier than policing individual land owners. More broadly, the federal government should also not shy away from a consensus-building approach to water management, messy though it is. While the repeal of WOTUS makes Washington’s role in protecting environmental quality much more complex and uncertain, earlier this year patient stakeholder engagement and consultation produced a landmark agreement among thousands of Colorado River water users to voluntarily reduce water consumption during times of drought— demonstrating that negotiation as well as regulation can achieve positive results for the planet.