How to promote federalism and reduce Clean Water Act abuse

The Clean Water Act is controversial in large part because there’s no realistic chance that an ordinary person could determine whether bureaucrats would deem her land subject to federal regulation (even the Washington Post’s fact checker can’t do it). Yet a property owner who guesses wrong faces federal fines of up to $47,000 a day and imprisonment.

Despite the President’s order to reconsider the much-maligned (and rightly so) WOTUS rule, the problem won’t go away because  the foundation for the rule remains in place. That foundation is a guidance document issued after the Supreme Court rejected the government’s excessive claim of authority under the Clean Water Act in Rapanos v. United States. After Rapanos came down, the agencies issued the guidance exploiting every ambiguity in the court’s opinions to reassert expansive authority. In the Daily Caller, I have an article explaining the problems with that guidance document, including that it was never submitted to Congress as required by the Congressional Review Act. As a result, the guidance document cannot be given legal effect and, if it is belatedly submitted to Congress, it can disapprove the interpretation and block any future administration from readopting it.

Because the controversial guidance wasn’t submitted to Congress, the administration has an opportunity to push back against decades of Clean Water Act abuse. Another opportunity for reform would be to shift much of this control from unaccountable federal bureaucrats to states. Under the Clean Water Act, states can take over permitting but the U.S. Army Corps of Engineers has been resistant to ceding control.

The Clean Water Act 404 program, the permitting program for placing dirt and other fill material into “waters,” should be transferred to states. This would be a marked improvement for property owners, since state regulators are more accessible than distant Washington bureaucrats. There’s also less risk for bureaucrats to overstep. A property owner who wants to hold an overreaching agency is much better off if the bureaucrat works for the state, not the federal government. At the very least, the property owner would have an easier time getting the attention of a state politician than the President or congressman, who would have better luck talking sense into a wayward bureaucrat. Property owners are also more likely to learn about these requirements if they’re administered by states rather then the federal government. People are used to having to get state or local permission when making land use decisions. They usually don’t think that plowing and other innocuous activities require federal permission.

State assumption of this permitting program is also likely to benefit the environment. The most obvious way state administration would benefit the environment is because state officials have better local knowledge. They, for instance, will likely know which way water flows, a key fact which can escape federal officials. Another, less obvious, way that state administration would be good for the environment is that, because property owners are more likely to contact the state about permit requirements before commencing a project, the state will be implemented more through ex ante permitting rather than ex post punishment. It is far easier and cheaper to modify a project to reduce environmental impacts before the project goes forward than to undo damage after the fact.

Shifting enforcement to states will be most beneficial for small projects with little to no environmental impacts. Under the federal implementation, these projects should trigger minimal oversight or red tape, thanks to a system of nationwide permits intended to allow them to go forward easier. For instance, any project that results in the discharge of less than 25 cubic yards of dirt or fill material is automatically approved under a nationwide permit.

In practice, however, these permits are only available to sophisticated parties, like utilities and housing developers. That’s because many of them require property owners to provide prior notice to federal bureaucrats before commencing their project. But since most ordinary people have never heard about the nationwide permits, they have no idea about this requirement until it’s too late (when federal agents show up on their doorstep).

The government’s treatment of Andy Johnson’s family, after he built a stock pond on his private property, was due entirely to one of these obscure notice requirements. Setting aside the problems in the government’s assertion of jurisdiction, the dispute also turned on whether the dam he built consisted of more or less than 10 cubic yards. His expert measured it at 9; a government official estimated it at 12. Although a nationwide permit authorizes any project that discharges less than 25 cubic yards of fill, prior notice is required for any discharge over 10. It’s outrageous that a federal agency threatened Andy Johnson’s family with tens of millions in fines over two years for, at worst, failing to comply with a paperwork requirement he’d never heard of. If this program were administered by the states, that situation couldn’t have happened since Johnson knew that state permission was required and obtained a state permit before building his pond.