September 24, 2012

"The Clean Water Act: A Problem With A Solution"

By M. Reed Hopper Senior Attorney

The American Conservation Ethic was put forward in 1996.  This was a statement of principles based on individual liberty, private property rights, and free markets that could serve to guide the development of national environmental policy.  To advance these principles, the Heritage Foundation has recently published Environmental Conservation: Eight Principles of the American Conservation Ethic which contains a compilation of “white papers” addressing problems with current federal environmental laws and offering  recommendations for fixing the problems.

I was invited to contribute a paper entitled The Clean Water Act: A Problem With A Solution wherein I chronicle regulatory overreach and enforcement abuses under the Act.  I also offer eight suggestions to address these issues:

1. Adopting a bright-line definition of covered waters under the act;

2. Ensuring that changes in agency policies and practices are subject to public notice and comment, as well as judicial review;

3. Prohibiting unilateral revocation of valid permits;

4. Providing fair notice of property subject to federal regulation;

5. Committing the agency to binding jurisdictional determinations, with right of judicial

6. Requiring proof of jurisdiction and any violation upon issuing an administrative order, with
right of judicial review;

7. Assigning regulatory enforcement to a single agency; and

8. Deterring “nuisance” suits.

The paper can be read here.

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