August 31, 2015

Orwellian language in the Clean Water Act

By Jonathan Wood Attorney

Recent press coverage of PLF’s challenge to the compliance order that Andy Johnson received from the EPA has highlighted some of the Orwellian language in the Clean Water Act. As you’ll recall, EPA is threatening Andy with tens of millions of dollars in fines for constructing an environmentally-beneficial stock pond on his private property. Some of the reports have noted that EPA contends Andy has discharged “pollutants” into the stream that crosses his property. Anyone reading that might be alarmed, because they’re going to assume EPA is using the word “pollutant” for its ordinary meaning. But it isn’t.

When most of us think of a “pollutant,” we think of toxic chemicals, like lead and mercury. Given recent events, the first thing that springs to mind is probably EPA’s accidental spill into the Animas River.

But when EPA says property owners like Andy have discharged a “pollutant,” they’re not using that term like you and I would. They’re using its technical meaning from the Clean Water Act. Under that statute, pretty much anything placed in water is a “pollutant.” In Andy’s case, EPA is calling the dirt and rocks that he used to make his dam a “pollutant,” even though it won’t mix with the water or contaminate it in any way.

Although publicly using “pollutant” in this was is misleading, this isn’t close to the silliest interpretation of the term by the agency. Several years ago, EPA got into a fight with the State of Virginia over its discharge of a “pollutant” into the Accotink Creek. The pollutant in question?

Water.

That’s right! EPA has said — one assumes with a straight face — that water is itself a  pollutant. Thankfully, the courts ruled in favor of the state in that case.

This doublespeak is unfortunate, but not uncommon. In fact, the most basic terms of the Clean Water Act are misleading. “Pollutant” is an obvious example. Another one, with perhaps more far reaching effects, is “navigable waters.”

The Clean Water Act forbids the discharge of “pollutants” into “navigable waters” and gives has broad authority to regulate these “navigable waters.” Now, I’m betting that when you hear the term “navigable waters” you’re imagining a lake, stream, or other body of water that is actually, you know, navigable.

Navigable waters
Which one of these looks like a “navigable water” to you? EPA has said “both.”

But that’s not how Congress used that phrase in the Clean Water Act, nor how EPA interprets it. In fact, “navigable waters” embraces not only nonnavigable waters, according to the EPA, but also land (though I suppose, in their defense, that at least the land is navigable). Several years ago, for instance, PLF defended a property owner from an EPA determination that a dry arroyo on his desert property was a “navigable water.” He caught EPA’s ire for, of all things, removing trash from that ditch without getting EPA’s permission first.

When politicians or bureaucrats speak publicly, they should speak plainly. Using words for hypertechnical meanings — especially when they directly conflict with ordinary meaning — is not only misleading, it’s manipulative. If the only way you can publicly defend your actions is by obfuscating, perhaps they’re indefensible.

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Johnson v. Environmental Protection Agency

Andy Johnson built a stock pond on his Wyoming property to provide safer, more reliable access to water for his small herd of cattle. More than the cows benefitted: The pond created wetlands, habitat for fish and wildlife, and cleans the water that passes through it. Nonetheless, the federal EPA accused Johnson of violating the Clean Water Act, demanded that he rip out the pond, and threatened him with fines of $37,500 per day if he did not comply. PLF represented Johnson in a lawsuit against the EPA because “stock ponds” are explicitly exempted from Clean Water Act jurisdiction. The government agreed to settle – the pond stays and Johnson pays no fine so long as he plants willows around the pond and builds temporary fencing to limit the cattle’s access.

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