This article was originally published in The Hill on April 1, 2019.
President Trump’s budget proposal for the coming fiscal year calls for a significant reduction in funding for the U.S. Army Corps of Engineers. In this respect, Trump is a lot like his predecessor — the Obama administration also sought cuts to the Corps’s bloated construction budgets.
It remains to be seen whether Trump will have more luck than Obama did in convincing Congress to reduce the Corps’s spending. But legislators could embrace an earlier change that would cut costs while helping to improve environmental protection: transferring a portion of the Corps’s expensive work to the states, as Congress intended when it revised the Clean Water Act in 1977. Congress revised the law to allow state officials to approve “dredge and fill” projects that previously required approval from the Corps.
Under the Clean Water Act, a property owner generally must secure a dredge and fill permit — also known as a Section 404 permit — from the Corps before discharging any dredged or fill material into bodies of water under federal jurisdiction. That means a property owner must receive federal government approval to build or perform other development-related work if the property includes what the Clean Water Act calls “waters of the United States.” Dredging might include clearing property, and filling might include what it takes to level real estate to build a home, a road or — along a body of water — a seawall.
The Environmental Protection Agency (EPA) and the Corps have broadly interpreted “waters of the United States” to include traditional waters such as tributaries, lakes, rivers, streams, creeks and wetlands, but also bodies of water such as prairie potholes, natural ponds, wet meadows and even ditches.
Bottom line, then, for most land owners is that the Clean Water Act requires that they ask the Corps for approval before they move forward with a project on their own property. If you stack that requirement on top of the state and local permits a landowner must obtain, you can see why building a home or putting property to productive use has become so expensive for the average American.
The 1977 amendments to the Clean Water Act included the congressional effort to reduce that regulatory burden by removing the Corps from the picture. Congress recognized that the states should have the primary right and responsibility over the development and use of land and water resources, and thus expressed its intention for states to implement Section 404. Transferring this work from the Corps to the states obviously would save the federal government money.
But giving the states greater authority in this area also would better serve the nation’s environmental interests. Local and state officials understand the impacts of development permits on their communities and, unlike distant federal officials, they must live with the consequences of permitting decisions. If a decision goes awry, locals can observe the results and more nimbly respond in such a way that preserves the environment while enabling managed growth.
The same cannot necessarily be said about the Corps. When its decisions go wrong, it can take decades to fix the resulting problems. We saw that firsthand when the levees failed in New Orleans during Hurricane Katrina, and Florida continues to live with the repercussions of poorly-made Corps decisions decades ago related to the Everglades watershed.
There’s a reason President Franklin Roosevelt’s Interior Secretary Harold Ickes lamented that “every little drop of water that falls is a potential flood to the ubiquitous Army Engineers, and they therefore assume it to be their duty to control its destiny from the cradle to the grave.”
That is not the constitutional role of the Corps, or any federal agency. Congress recognized as much when it set out to transfer authority from the Corps to the states for dredge and fill permitting. To date, only New Jersey and Michigan have accepted this invitation; Florida and Arizona are contemplating joining those two.
Congress should encourage more states to get in line. It would benefit the federal budget and the environment, and restore a sense of accountability and responsiveness in government by pushing decision-making down to the state level.
Mark Miller is an attorney at Pacific Legal Foundation, which litigates nationwide to achieve court victories enforcing the Constitution’s guarantee of individual liberty.