May 12, 2014

Does expanding the Clean Water Act make fiscal sense?

By Damien M. Schiff Senior Attorney

So argues former GOP representative Sherwood Boehlert in last week’s Roll Call.  Actually, Mr. Boehlert makes several arguments, not all fiscally based, to support EPA’s and the Corps’ proposal to assert Clean Water Act jurisdiction to every stream, and probably every wetland, in the country.

First, the rule “does not break new ground” but merely clarifies what Congress always intended, viz., to regulate “all of our nation’s important surface waters.”

Second, the regulations are not a “land grab” because the Clean Water Act protects “people’s rights,” principally by preventing pollution nuisances.

Third, the loss of wetlands hurts taxpayers because government must pay more for flood control and pollution remediation, and thus the regulations’ robust wetlands protection will save money.

Fourth, the regulations provide clarity, which will help the regulated public.

Let’s look at each of these assertions a little more closely.

Mr. Boehlert’s contention that the regulations do not break new ground is demonstrably false.  Under current law, EPA and the Corps generally must establish a significant nexus on a case-by-case basis to support jurisdiction.  Under the regulations, however, a significant nexus is definitively presumed for every stream in the country, no matter how insignificant the flow in the stream, as well as for every wetland “adjacent” to any stream.  Moreover, for the first time the regulations define “adjacent” to mean within a “floodplain,” a definition which could expand jurisdiction to hundreds of yards, if not further, from a tributary’s banks.

It is true that pollution can cause a nuisance and that, under traditional property law principles, such nuisances can be abated without having to compensate a landowner who must refrain from continuing his nuisance-causing activities.  But the Clean Water Act regulates far more than the industry plant spilling chemical sewage into a river.  In fact, most of the controversies over the Act’s application concern the regulation of normal land-use activities that do not meaningfully injure water quality or contribute to any nuisance.  For example, in Rapanos the landowner was guilty of moving clean dirt on his own cornfield; in Sackett, the landowners simply wanted to build a single-family home within an existing residential neighborhood.  It is absurd to call these activities nuisances, yet EPA and the Corps seek to regulate them under the Clean Water Act.

With respect to government costs, Mr. Boehlert is correct that loss of wetlands can contribute to flood control problems and pollution issues.  But he fails to acknowledge that most of the nation’s wetlands were eliminated before the Clean Water Act was enacted.  Hence, the difficulties that he cites are more reasonably attributed to activities that have already occurred, the effects of which we now experience.  But it is patently unfair to require today’s landowners who seek to develop their property exclusively to bear the burden for ameliorating the impacts of wetlands losses that already developed property has created.

Finally, assuming for the sake of argument that Mr. Boehlert is correct that the proposed regulations provide clarity to the regulated public, that value isn’t limited to the proposed form of the regulations.  For example, a just as clear rule would be one that excluded all wetlands from regulation.  In other words, clarity cuts both ways; and a dramatic expansion of the Clean Water Act’s scope (regardless of its supposed clarity) is not the only way to obtain it.

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