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Vol. 27 No. 2

Mark Ryan is Assistant Regional Counsel in the EPA Region 10 Boise Office and a member of the editorial board of Natural Resources & Environment. The views expressed here are Mr. Ryan’s alone and do not necessarily reflect the views of the EPA.

The Clean Water Act (CWA) marked its 40th Anniversary in October. After it was passed in 1972, the CWA quickly became and remains today one of the cornerstones of our federal environmental protection system. Along with the Clean Air Act and Superfund, to name a few, Congress’s enactment of the CWA has resulted in dramatic improvements in our environment and quality of life. Yet the Act remains controversial and, in my experience, frequently misunderstood and misrepresented.

A case in point arose recently on the Daily Show. A politician appeared on the show to plug his book about overregulation. I listened to the short clip and was immediately struck by the errors and omissions. The politician referred to the Clean Water Act of 1974. [Granted, a minor error; it is 1972.] He acknowledged that Congress intended the CWA to be used to regulate discharges of pollutants to navigable waters [true], but “over time,” he said, “we came to define dirt as a pollutant and navigable waters as your back yard,” implying that the agencies and courts had snuck in broader definitions than intended by Congress. [False. Section 502(6) of the CWA specifically defines “pollutant” to include “dredged spoil . . . rock, sand, cellar dirt.” Section 404, the wetlands section, states that the discharge of “dredge or fill material” is illegal without a permit. If fill material does not include dirt, what does it include?] He then opined that regulators had overreached in the United States v. Lucas case by criminally prosecuting a man who merely “placed dirt onto dry ground.” [False. The Fifth Circuit stated in the opening lines of its opinion in Lucas: “Defendants sold house lots and designed and certified septic systems on wetlands but represented the lots as dry. Septic systems on the lots failed, causing waste discharges. The Government charged the corporate developer and various individuals with Clean Water Act (CWA) violations, mail fraud, and conspiracy to commit mail fraud and to violate the CWA. A jury found Defendants guilty on all counts. Defendants appealed.” The Fifth Circuit affirmed.]

The always quotable Thomas Henry Huxley referred to “[t]he great tragedy of science—the slaying of a beautiful hypothesis by an ugly fact.” Whether talking about science or policy, it is human nature to fall into that trap, to avoid the facts that slay our beautiful view of the world. In our quest to make a point, we frequently ignore and elide the contrary details. All of us have used facts selectively at times. In public discourse, we need to make our point, but we also owe it to the public to at least acknowledge the other side. In our adversarial system of law, it is up to the other side to point out the facts that support their case. But cherry picking the record to make a fallacious argument should have no place in public discourse.

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