Waters of the United States and the Clean Water Act
On June 22, 1969, The Cuyahoga River in Ohio caught fire and national attention. This was at least the 13th time since 1868 that the river has caught fire as a result of point source pollution of the river by manufacturers along its banks. Dumping flammable materials, along with other chemicals and human waste, was simply more economical than treating the waste in a responsible manner.
For the manufacturers, it was a matter of dollars and cents that they did not have to spend in the disposal of these waste products, even though the cost to people who lived on the river and the value of the loss of fisheries was borne by other people. As economists, we describe that sort of economic behavior as externalizing costs—the costs are not carried on the offending firm's profit and loss statement, but by other firms who cannot draw fresh water from the river, and the public in general.
The result of the fire and similar problems across the country resulted in the passage of the Federal Water Pollution Control Act Amendments of 1972, which amended a 1948 law. In 1977, previous law was ended with the passage of the Clean Water Act (CWA). Further amendments were made in 1987.
Under federal statutes, groundwater contamination is governed by the Safe Drinking Water Act, the Resource Conservation and Recovery Act, and the Superfund Act, while the CWA covers the surface waters of the US, variously called the "Waters of the US" or the navigable waters of the US. The question is where does the "waters" end and an intermittent stream or dry ditch begin. To what extend are the marshes and wetlands that are adjacent to a covered waterway also fall under the jurisdiction of the CWA that is governed jointly by the US Environmental Protection Agency (EPA) and the Army Corps of Engineers (COE)?
Several recent Supreme Court rulings have set the stage for the need for a systematic clarification of what is covered by the CWA. On Monday, April 21, 2014, the EPA and the ACE issued a proposed rule titled "Definition of "Waters of the United States" Under the Clean Water Act" (http://tinyurl.com/mk5a7nb).
As the rule states, "The purposes of the proposed rule are to ensure protection of our nation's aquatic resources and make the process of identifying ''waters of the United States'' less complicated and more efficient. The rule achieves these goals by increasing CWA program transparency, predictability, and consistency. This rule will result in more effective and efficient CWA permit evaluations with increased certainty and less litigation. This rule provides increased clarity regarding the CWA regulatory definition of ''waters of the United States'' and associated definitions and concepts."