Tag: Clean Water Act

In Sackett Case, a Shallow Dive into ‘Wetlands’

 

Last week, a thoroughly confused and grumpy Supreme Court heard oral arguments in Sackett v. EPA, which once again addressed the reach of government permitting power under the 1972 Clean Water Act.  In 2004, Michael and Chantell Sackett purchased a 0.63-acre lot in an Idaho housing subdivision, separated by three hundred feet from Priest Lake—a large, navigable body of water—by a major road and other homes. In 2007, the Sacketts applied for a building permit, which the Army Corps of Engineers denied on the grounds that their lot was properly classified as a wetland, which under the CWA meant the Sacketts were required first to get a permit from the Corps. The designation as a wetland came from a May 2008 Corps study by the EPA’s field ecologist, John Olson, which “observed that all portions of the Sackett property where native soil was removed but fill material had not been placed . . . were inundated or ponded/saturated to the surface.”

This legal tangle begins with a key coverage provision of the CWA:

(7) The term “navigable waters” means the waters of the United States, including the territorial seas.

The Libertarian Podcast, with Richard Epstein: “The Uses and Abuses of the Clean Water Act”

 

I know what you’re thinking: “I’ve just read this terrific Richard Epstein post on the Clean Water Act (see below), but where I can get some sweet Epstein environmental protection podcast action?” Well, friends, look no further. In this episode of The Libertarian podcast we endeavor to give a layman’s explanation of the Clean Water Act and explain how a well-intended law has obstructed genuine environmental protection while snagging innocent landowners in a needless regulatory morass. Listen in below or subscribe to The Libertarian podcast via iTunes so that you never miss an episode.

When Environmental Protection Laws Enable Pollution

 

shutterstock_258860813Shortly after my piece “Filtering the Clean Water Act” went up at Hoover’s Defining Ideas, I got an email from Eric Wolinsky, who asked this question:

Lake Champlain has a significant pollution problem caused in large part by runoff from agricultural fields. The current rules require a buffer between crop land and ‘waterways.’ The problem is that there are no required buffers between cropland and ditches that don’t meet the definition of ‘waterways.’ During rains, the runoff enters the ditches, [and then] travels to the ‘waterways’ and on to Lake Champlain. The waterways are buffered, but the ditches are not. The runoff gets to the lake just as if the buffers on the waterways weren’t there.

How do you regulate this situation without expanding the definition of waterways?

How the Clean Water Act Went Off the Rails

 

shutterstock_121109029Late last month, a federal district judge in North Dakota took the rare step of questioning the scope of the EPA’s jurisdiction under the Clean Water Act, holding up a new agency rule that includes a capacious definition of the “waters of the United States.” As I note in my new column for Defining Ideas, we wouldn’t be in this mess were it not for a long string of judicial decisions that have consistently increased the EPA’s authority and muddled the legal landscape:

… The massive nature of this new regulation is made plain in the introductory paragraph of Justice Antonin Scalia’s 2006 plurality opinion in Rapanos v. United States:

“In April 1989, petitioner John A. Rapanos backfilled wetlands on a parcel of land in Michigan that he owned and sought to develop. This parcel included 54 acres of land with sometimes-saturated soil conditions. The nearest body of navigable water was 11 to 20 miles away. Regulators had informed Mr. Rapanos that his saturated fields were “waters of the United States,” that could not be filled without a permit. Twelve years of criminal and civil litigation ensued.”

Leave the Environment to the States

 

shutterstock_124385440Unless you were hiding under a rock this Earth Day, you probably heard the familiar tale of how America (ca. 1970) was on the brink of turning into one vast toxic waste dump until the federal government swooped in to save us all with the Clean Water Act, the Clean Air Act, the Endangered Species Act, and so on.

According to the conventional history, the Clean Water Act rescued America from the brink of environmental apocalypse. Before the federal government acted, according the New York Times, “the nation’s waters were in terrible shape … Lake Erie on its deathbed, Ohio’s Cuyahoga River bursting into flames.” In reality, the states were actively working to protect the environment well before the federal government got involved. By 1966 — six years before the federal Clean Water Act — every state had enacted water pollution legislation and had empowered one or more state agencies to enforce environmental standards.

In Cleveland, the citizens knew about pollution on the Cuyahoga long before Washington took notice. In 1968, the city’s voters had approved a $100 million bond issue to finance river cleanup, whereas Congress allocated nothing to Cleveland. As for Lake Erie, if it was on its “deathbed,” as the New York Times says, it was partly due to the fact that the federal government (the Army Corps of Engineers) was busy dumping over a million cubic yards of contaminated material into the lake each year in the late 1960s.