| 摘要 | Key Points
The Clean Water Rule—commonly referred to as the Waters of the US (WOTUS) rule—defines the jurisdiction of the Clean Water Act over all waters that have a “significant nexus” with navigable waters.
The WOTUS rule creates regulatory uncertainty since much of the jurisdiction is left to case-by-case determination and is burdensome given the large fines imposed by the Clean Water Act.
The WOTUS rule would have little impact on water quality because nonpoint emissions are largely exempt.
Markets for water quality provide an opportunity for cost-effective improvements in water quality, but property rights for emissions must be clearly defined.
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Executive Summary
To protect navigable waters, the Clean Water Act’s jurisdiction extends to waters linked to navigable ones. But because essentially all waters are connected, under the 2015 Waters of the United States (WOTUS) rule, agencies will assess the degree of connectivity on a case-by-case basis. A recent executive order from President Donald Trump asks the Environmental Protection Agency to rewrite the WOTUS rule using Justice Antonin Scalia’s “continuous surface connection” definition. All this confusion threatens property rights.
Farmers often will not know if their land is under Clean Water Act jurisdiction, yet they can face fines of $25,000 per day of violation for certain activities. If farmers are aware that their land is under Clean Water Act jurisdiction, then they must apply for costly permits: up to $28,915. Moreover, the WOTUS rule fails to address pollution from nonpoint sources and ongoing farming activity. It does not estimate the cost and benefit trade-offs well. In the past 25 years, water quality has seldom improved.
This paper proposes a new, market-based approach to reduce pollution and reach the optimal cost and benefit trade-off. As theorized by Ronald Coase in 1960, property rights would be assigned, to either farmers (right to pollute) or environmentalists (right to clean water). They would then make contracts in which one would accept not to use his or her right fully in exchange of compensation.
The initial allocation of property rights is to be established by states. State governments must ensure that parties comply with their contracts. State governments should also support the development of organizations that represent individuals and may use tax dollars to finance them, as these organizations would otherwise suffer from a free-riding problem.
Introduction
One of the most contentious debates between agricultural and environmental interests is about the Clean Water Rule finalized in 2015—commonly referred to as the Waters of the US (WOTUS) rule. The WOTUS rule was a response to uncertainty that previous Supreme Court cases created that found the Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps) had overreached in their definition of jurisdiction provided by the Clean Water Act (CWA). The EPA and the Corps argue that the WOTUS rule provides greater clarification on the jurisdiction of permitting programs and is based on legal precedent and scientific evidence with respect to hydrologic connections. Agricultural interests—among others—argue that the rule represents the government’s vast overreach into private landowners’ decisions.
The CWA gives the agencies authority to issue permits to protect the water quality of navigable waters. The Supreme Court has recognized that the jurisdiction must expand to non-navigable waters, but much of the debate hinges on whether to use Justice Antonin Scalia’s or Justice Anthony Kennedy’s test to define jurisdiction. In an opinion, Justice Scalia argued that jurisdiction only extends to waters with a “continuous surface connection” to navigable waters. Justice Kennedy argued that jurisdiction extends to waters that have a “significant nexus” with navigable waters, in which a significant nexus is defined as any water that “significantly affects the chemical, physical, or biological integrity” of downstream waters under the agencies’ jurisdiction.1 The WOTUS rule applied the Kennedy test, and the EPA issued a scientific report documenting the connection of non-navigable waters to navigable waters. The rule leaves a significant amount of jurisdiction to case-by-case examination, so landowners are uncertain about whether they fall within the jurisdiction without obtaining a jurisdictional determination from the Corps.
The main conclusion of this study is that the WOTUS rule would have little to no impact on improving water quality while creating regulatory uncertainty because in many situations, whether a government agency has jurisdiction over a body of water has to be determined on a case-by-case basis. This regulatory uncertainty is especially burdensome due to large fines for violations, even if the violators are inadvertent. Additional permitting requirements under the WOTUS rule also create significant application costs and delays to implement activities on private land to obtain permits. David Sunding and David Zilberman2 estimated the average cost of applying for a general permit from the Corp at $28,915 and 313 days. The average cost of applying for an individual permit was much higher ($271,596), and the process was much longer (788 days).
While such regulatory uncertainty has negative economic impacts, impacts on agriculture are often overstated. Contrary to some claims, the WOTUS rule would not have required agriculture to obtain permits for regular farming activities. Agriculture—except concentrated animal feeding operations (CAFOs)—is largely exempt for permitting requirements under the CWA, and the WOTUS rule did not affect those exemptions. However, there are legitimate concerns that in some settings agricultural exemptions may be undermined by how EPA and the Corps interpret vague language in the applicable legislation. A prime example is the John Duarte case, in which the Corps determined that plowing a field did not meet the agricultural exemption since the field had not been tilled for 24 years.
While the WOTUS rule has created significant political tension, the fundamental problem with addressing water quality is the lack of secure property rights for agricultural nonpoint emissions. A clear property right would define whether agricultural nonpoint sources have the right to emit pollutants into water or society has the right to have water with few pollutants. Nonpoint source emissions are largely exempt from permitting under the CWA. However, those emissions can be regulated if a waterbody is determined to be impaired and the state establishes a Total Maximum Daily Load (TMDL). Some states explicitly exempt agriculture from pollution regulations, while other states have laws that would allow for regulation of nonpoint source emissions.3
Insecure property rights often lead to lawsuits and lobbying. Some environmental interests find it more cost-effective to improve water quality by paying lawyers to force the government to enact regulations on agriculture rather than paying landowners to improve water quality. The courts play an important role in deciding cases that define property rights, so lawsuits certainly have merit. However, the CWA’s language is unnecessarily vague and has resulted in decades of lawsuits with still unclear property rights.
There is an alternative to lawyers and lobbyists—harnessing the power of markets to improve water quality. In this solution, environmental interests and agricultural interests work together to find solutions using incentives created through market transactions for water quality. The government need not place a heavy regulatory burden or overlook water-quality concerns. The government simply needs to clearly define the property rights for agricultural nonpoint emissions.
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