The Power to Tax (and Permit) is the Power to Destroy

Yesterday, the EPA issued the long-awaited draft rule on “Waters of the U.S.” – you can find all 300+ pages here.   I’m still wading through it, so will reserve final judgement on its details until I’m done digesting it.  However, the rule, if adopted, will expand the scope of the federal government’s authority to many areas on the landscape (ephemeral and intermittent streams, and “other waters”) that have been beyond the government’s reach since the SCOTUS decision in the Rapanos case.

I’ve been quite clear about my concern regarding the expansive authorities of the federal government under the Clean Water Act, and outlined them a few years back with Jim Murphy here in, Repairing the Clean Water Act, when Congress sought to expand authority legislatively.  My concern should not be construed as a lack of concern regarding the importance of these resources nor a belief that they do not need to be protected; rather, my concern is rooted in the importance of the rule of law, constitutional principles, and the fact the federal government has demonstrated a propensity of poor judgment in implementing and enforcing the Clean Water Act, but particularly under Section 404 of the Act, which is principally, although not entirely, the thrust of this rule.  Case in point, the recent Sackett decision, which I discussed here at Protecting Water Resources While Safeguarding Against Government Overreach, is a case where the SCOTUS ruled 9-0 against EPA for an arbitrary and overzealous prosecution of a family in Montana.  You can read more about it here at the Pacific Legal Foundation, who represented the Sacketts.  And just a few weeks ago, we learned of a Wyoming family that EPA is targeting –  threatening them with $75,000 per day – for constructing a stock pond on their ranch.  

It used to be the power to tax was the power to destroy, increasingly, it’s becoming the power to permit.  Admittedly, good governance and good government demand that the jurisdiction of the federal government be clarified through a rule-making, as opposed to mere guidance.  Greater clarity is needed for the agency to do its job properly and for the public, industry, states and local governments to understand where the federal government’s authority under the Act begins and ends.  The challenge for the Agency is not only whether this rule will pass legal muster but whether the Agency can be entrusted to exercise its enormous authorities competently, fairly and judiciously.  Only time will tell.

  1. Avatar Author
    Brent Fewell 10 years ago

    Tough questions for Gina McArthy today on the rule. In fact, what was supposed to be a typical EPA budget hearing turned into hostile waters over navigable waters

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    David Jenkins 10 years ago

    I would caution conservatives against rushing to judgement on this proposed rule. The muddled Rapanos decision created a mess and departed from the 30+ year old status quo in interpreting the scope of the CWA. In 1977 Republican Howard Baker beat back an effort by Democrat Lloyd Bentsen to narrow the CWA’s scope with respect to wetlands, pointing out that Congress intended the CWA to have comprehensive jurisdiction over the nation’s waters.

    The bigger issue here is the importance of protecting wetlands and the other water features at issue in this proposed rule. Conservatives need to recognize the value of these resources, not just for wildlife habitat and hunting, but for saving taxpayers money.

    wetlands and other water features naturally trap, store and filter water. When wetlands are lost and watersheds hardened, the inevitable result is new costly infrastructure to perform the same services that wetlands perform for free. Not only do taxpayers foot the bill for the initial construction of this infrastructure, but they end up on the hook to maintain it over time. Then, of course there is the costs of flooding and drought that often result from wetland loss.

    While paving over wetlands might make a builder a bit wealthier, it is often at the expense of those who live downstream and everyone who pays taxes.

    We have already lost over 50 percent of the estimated 221 million acres of wetlands that were present at our nation’s founding. The CWA, even prior to Rapanos, only slowed the rate of loss. While CWA jurisdiction is not the only tool we have, it is one we need.

    It is true that bureaucrats can sometimes overreach and fail to use common sense in administering laws, but that is no excuse for eliminating the the laws that protect something as vital and threatened as wetlands.

  3. Avatar Author
    Brent Fewell 10 years ago

    David, appreciate your comments. Agree wholeheartedly that the conservative response should be to support the effort to protect these resources. But by what means? My equal, if not greater, fear and concern for the time being, however, relates to the potential abuses of the federal government and those who would seek to use these laws to bring the economy and development to a halt.

    • Avatar
      David Jenkins 10 years ago

      Brent, I guess when I look at the rate of development over the years I have a hard time finding many things that have brought it to a halt. For every example you might come up with the the snail darter and spotted owl, but there are countless examples of legitimate environmental concerns being buried under a bulldozer. Heck, we still have not fully met the fish-able swim-able goals of the Clean Water Act decades after the deadline.

      While there are cases of bureaucratic overreach in the application of environmental laws, I believe that there are far more cases where our environmental laws prove inadequate in protecting those things that need protecting. For example, the Clean Water Act has not prevented over 1000 miles of streams in West Virgina from being buried or otherwise impaired by mountaintop removal coal mining.

      Think about what the condition of our rivers was prior to the Clean Water Act. Think about the public land and wildlife decimation prior to Theodore Roosevelt’s public land policies. How about the quality of our air prior to the Clean Air Act? While we would like to think that mankind can rise above his lesser instincts, we see countless examples of that not being the case.

      I agree with Edmund Burke, the founder of modern conservatism, when he said “Somewhere there must be control upon will and appetite; the less of it there is within, the more of it there must be without.” What we should be looking for in our environmental laws is proportionality and balance. Where we show proper restraint and demonstrate the ability to be good stewards, there should be less restrictions, but where we fail in our stewardship obligation, there must be more.

      As conservatives we should always favor prudence over expediency and facts over emotion. When it comes to wetlands policy and the value of the Clean Water Act, I find it hard to give more weight to a few anecdotal examples of bureaucratic excess than to the rate of wetlands loss and the myriad of shared problems associated with with that.

      It is also worth noting that wetlands loss also results in bureaucratic excess (along with a hefty price tag). Just think of all the U.S. Army Corps of Engineers boondoggles that we taxpayers have paid for over the years.

  4. Avatar Author
    Brent Fewell 10 years ago

    Although I maintain my serious doubts about EPA’s new waters of the U.S. rule, I give credit to the Agency for exempting 53 NRCS conservation practices from having to obtain EPA/Corps permits. Many of these practices, e.g., brush management, fencing, fishpond management, irrigation field ditches, wetland restoration, wetland enhancement, are common sense exemptions from federal permitting and important for improving water quality. EPA/Corps/NRCS memo here.

    Two additional changes could actually help the agency win over a skeptical populous: (1) provide greater certainty for permittee’s to obtain permits and (2) require certain 404 enforcement actions be reviewed by Headquarter’s enforcement head and general counsel to minimize those cases of overreach.

  5. Avatar
    David Jenkins 10 years ago

    I agree. My concern is that fellow conservatives will seek to block the proposed rule simply because it comes from this Administration, and without any thought to the value of wetlands or what happens to them without the rule. Tweaking it would seem more prudent than rejecting it without a plan B.

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