Environmental advocates say that failing to implement the Clean Water Rule will cause large scale damage to the environment. They are very likely correct, but it is impossible to prove.

Opponents are attempting to use a legal maneuver to establish an alternative “rule” that is actually just a repeal of the not yet implemented Clean Water Rule and a return to the prior regulations. They argue that this repeal would reduce confusion, while also acknowledging that the Clean Water Rule was created because of complaints that the prior regulations were too confusing to follow. The Clean Water Rule does not mandate doing anything, it simply establishes federal clean water regulatory authority over an expanded definition of the Waters of the United States. 

The tricky part of all this is that there are two layers of uncertainty about the effect of not implementing the Clean Water Rule. The Rule is naturally expected to reduce pollutants discharged into streams and ponds that could then flow into and pollute downstream waters, but it is impossible to know the extent of avoided pollution because we cannot know the extent of pollutants that would be discharged in the absence of the Rule. It is also impossible to know the economic damage, if any, of restricting the discharge of pollutants into these bodies of water. Furthermore, it is impossible to know the extent of environmental damage that would result from this unknown quantity of pollutants.

It is naturally expected that the Rule will reduce the volume of wetlands destroyed to build housing, shopping centers, and golf courses. Wetlands are important to clean water because they naturally cleanse and slow the flow of run-off. But, again, we cannot know how many acres of wetlands will be lost in the absence of the Rule, or the environmental consequences of that loss. It is reasonable to assume that some will be lost. Probably a lot. And it is reasonable to assume that this will cause environmental damage, possibly a lot. Likely quite a lot. But we cannot know how much. The same goes for economic damage to land owners. It is reasonable to assume that there will be some, maybe a lot, but that too cannot be known in advance.

Ultimately, we as a society need to decide if we value an abundance of caution regarding clean water over the potential economic impact to land owners. We need to decide if we will take the value of private property for the public use of clean Waters of the United States. Property owners deserve fair compensation, but the most prosperous nation in the history of the world should choose clean water and pay the cost.