22 Apr 2009

Clean Water Restoration Act

(via DW) The NYT opines:
An internal E.P.A. report furnished to Congress last year revealed that the agency had dropped or delayed more than 400 cases involving suspected violations of the law — nearly half the agency’s entire docket. The reason in every instance was that regulators did not know whether the streams and wetlands in question were covered by the law.

Until the two Supreme Court rulings, the Clean Water Act had been broadly interpreted by courts and by federal regulators to shield all the waters of the United States — seasonal streams and remote wetlands as well as large navigable rivers and lakes — from pollution and unregulated development. The assumption was that even the smallest waters have some hydrological connection to larger watersheds and therefore deserve protection. The Supreme Court, however, exploiting ambiguities in the law, effectively decreed that only navigable, permanent water bodies deserve protection.

As a result, at least 20 million acres of wetlands and as much as 60 percent of the nation’s small streams have been left unprotected, while effectively shutting down enforcement actions against developers who have been disturbing or plan to disturb these waters without a permit.

The Clean Water Restoration Act would establish, once and for all, that federal protections apply to all waters, as Congress intended in 1972. Now a new Congress and a new White House must ensure that it becomes law.
I agree with this interpretation of the way that the original clean water act has been weakened.

Does anyone have evidence of harm (besides delays in/cost increases for development) caused by the original act?

Bottom Line: A clean water act should promote CLEAN water!


  1. I'm not sure how a free-market economist can get on board with another one of these command-and-control regulations. The Clean Water Act, like the Endangered Species Act, basically preserves the environment as a "public good" without paying for the costs of that preservation. Those costs are borne by unwilling third parties, the opposite of a market-based approach to achieving solutions to scarcity and environmental degradation.

    The battle over the intent of the Clean Water Act has been going on for some time. The power of the federal government in regard to the regulation of water bodies was thought to reside in the Commerce Clause of the U.S. Constitution, which gives the federal government authority over navigable waters and therefore gave rise to the first federal water pollution control statute, the Rivers and Harbors Act of 1899. This was expanded by the Clean Water Act, which was itself construed by the U.S. Supreme Court in a case called U.S. v Riverside Bayview to basically drop "navigability" as a qualifier to the reach of waters that are actually protected by the statute. The court, rather, said that both navigable waters and adjacent wetlands are within the reach of the Clean Water Act.

    The U.S. Supreme Court later fixed an outer limit to the regulation in a case called SWANCC v Army Corps, however. In that case, the court said that purely isolated, intrastate wetlands are not within the ambit of the Clean Water Act. It found so by interpreting the text of the statute, but it did not reach the constitutional question of whether, even if the Clean Water Act did purport to regulate EVERYTHING, it would be unconstitutional as being in excess of the Commerce Clause.

    Remember, the Commerce Clause is limited in scope. Purely intra-state activities are not within the federal government's power to regulate commerce among the states. Therefore, many conservative scholars argue that the Commerce Clause does not allow for a Clean Water Act that reaches each and every mud puddle not connected to interstate waterways, and the federal government most certainly does not otherwise have a generalized police power to just "rule what it wants".

    So there are solid arguments that Congress has no business regulating stuff that is completely remote from interstate commerce, as a matter of constitutional law. But all that is beside the point.

    Yes, like every regulation that would purport to restrict the use of land, impacts are largely uncompensated and ride on the backs of private parties. There are farmers - take Angelo Tsakopolous, for example, who is basically a developer but pursued a Clean Water Act wetlands case clear to the U.S. Supreme Court when he was fined for deep-ripping soil in order to drain it better so that he could plant a vineyard - who are restricted in their activities due to Army Corps jurisdiction (claimed) under Section 404 of the Act. Happens every day.

    In this case, there are a good many folks in the uplands on the east side of the Valley, around Oakdale and places like that, who have "vernal pools" that are isolated and hang in the balance, depending upon which way this issue goes. I know of examples of orchards which are very nicely planted, except for big one-acre bald patches where nothing has been planted because either Corps jurisdiction is thought to restrict it (CWA) or brine fairy shrimp are present (ESA). That is a direct cost to the farmers involved.

    Many also feel that the extension of jurisdiction under the CWA act to isolated pools unconnected to waterways is not only unconstitutional at the federal level, but unnecessarily burdensome as both state and local regulations apply. Fish & Game, the state board's coming Wetlands & Riparian Policy, local regulations like in Sonoma, Napa and other counties, etcetera.

    All of that is the policy overlay, though. The bigger question is why are you arguing for a larger federal statute that is an anti-market based approach to solving environmental problems? Do markets not work that well at fixing things like this? :)

  2. @Cf -- good review of Commerce overreach. I agree with you -- and LOVE the 10th Amendment.

    BUT, I think that the CWA solves a nasty problem -- pollution in water. The old fashioned way of solving it (common law) may work in other places, but not in our prescriptive legal system. Further, there's a free-riding problem with SOME downstream users potentially benefitting from the actions of other plaintiffs/damaged parties.

    That's why we get a REGULATION instead of a much-more-tidy bi-/multi-lateral Coasian solution (read Coase 1960: www.sfu.ca/~allen/CoaseJLE1960.pdf)

    At bottom, it's all the result of too many lawyers :)

  3. God bless ya for understanding the 10th Amendment! The federal government is a government of enumerated powers, and all powers not expressly enumerated are reserved to the states!

    By the way, it must be said that most legal commentators note that both the Clean Water Act and the Clean Air Act are environmental statutes that have been resounding successes in terms of achieving their goals. The same observers also agree that for the most part, the Endangered Species Act has been a failure - it does not tend to emancipate species from the need for protections (bald eagle and wolves being a couple of small examples to the contrary).


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