CM – The US government’s deregulated oversight of interstate waters is having a murky impact on states


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April 20, 2021

from the University of Houston

The familiar darkness of the Gulf of Mexico waters can be daunting for beach goers visiting Galveston Island. The runoff from the Mississippi reaches local beaches, turning the downstream water opaque and brown. Mud is one factor and river runoff is another. However, concern tends to increase when pollution enters the river runoff discussion at the national level, particularly when smaller, navigable inland waters push pollution into larger interstate waters that are often traded (e.g. the Mississippi, Great Lakes, Ohio) River).

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Research analysis recently published in Science, co-authored by Victor Flatt, Dwight Olds Chair of Law at the University of Houston Law Center, shows how the alleged benefits of lifting federal oversight of these transboundary waters and Failure to assume this responsibility towards individual states failed to take into account economic and scientific evidence that said otherwise and violated the limits of reasonable law.

In the article « A water rule that ignores transboundary pollution, » explained Flatt as the only legal researcher, like the 2020 rule on the protection of navigable waters, which withdrew federal supervision of interstate waters, did so with the obvious assumption that state governments would fill the oversight loophole. The evidence not only indicated an alternative result, but the federalism rationale for the rule was also wrong, in the researchers’ opinion. « New administrations can implement new guidelines, but these guidelines must be compatible with the statutes and the constitution be logical, « said Flatt. « The legal phrase is: ‘You cannot be arbitrary and capricious.’ An administration can only do what is legally permitted and must be rational and logical. It fails because of this. This is a political disagreement, but it is a political disagreement that is beyond the limits of what is legally allowed. « 

The cleanliness of major cross-border rivers is the responsibility of the federal government and under the Clean Water Rule (CWR) of 2015, which was enacted during the tenure of former President Barack Obama. This included small wetlands and streams that could drive the runoff of pollution into these larger rivers that cut several states in half. In 2020, under the Navigable Waters Protection Rule (NWPR), federal regulation of some of these smaller, interconnected bodies of water was withdrawn, leaving individual states with a responsibility to fill the gaps. However, many states have failed to assert control over these waters, as was suggested by the administration of former President Donald Trump, leaving room for pollution to enter interstate waters.

« A prominent example is this judicial challenge of the CWR 2015 by 31 states on the grounds that this would cause excessive costs. For inexplicable reasons, the economic analysis of the NWPR showed that 14 of these states would now change their position, « says the science article. As Flatt explains, this assumption was the wrong step.

« The Army Corps and the EPA said in their analysis that 31 states will step in and help protect the wetlands that the federal government would no longer protect », said Flatt. “However, economic analysis best practices say you cannot speculate about future government action. When I looked at this, I found that many of these states are even prohibited from enacting a stricter rule than the federal government. Here are those Faulty data. « 

In March, President Joe Biden’s administration proposed an investment of $ 111 billion in water infrastructure. Flatt said implementing the investment will include a review of previous guidelines and research, including information revealed in the science article.

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Related title :
Deregulated US government oversight About Interstate Waters Water has murky implications for states


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