Our basic motivation was that public policy in those days didn’t require public actions, industry, commerce and even some personal decisions to recognize and sometimes mitigate certain costs and problems they caused. We needed to give those costs and problems appropriate weight in public and private decisions and mitigate them as appropriate. We had to find the right balance points.
That lack of balance and appropriate mitigation has almost completely been remedied by laws, regulations and practices adopted in the last half century. But we got so carried away with regulation, mitigation and even prohibition that years ago the pendulum swung well past the balance points in many areas.
Over-reach in applying the 1972 federal Clean Water Act (CWA) is a prime example. The CWA was intended to protect waters from pollution and degradation for maximum benefit to all. There were major problems in both the processes by which the act and its regulations were administered and the results.
One cause of those problems is that many people attracted to environmental activism and government regulation are not really interested in balance and the public interest. They are special interest ideologues and zealots with agendas.
Also, when folks become government officials or employees, their natural instinct to expand their scope and means of control comes to the fore. Then they stretch their constraints and the definitions and standards applicable to their real mission for more room to pursue their agendas. They even make up powers and rules expedient to the goals of the insular cultures their agencies develop.
The other cause is that the CWA, like so much law and regulation in the 20th Century, centralized most decisions and rulemaking in Washington DC, too far away from where it would be applied to recognize the specific local problems and needs for different solutions.
Coupled with the self-selection of people into the insular culture and special-interest agency agendas, this insulation allowed their imaginations to run amok. And to view people with competing interests, including balance, as ill-intentioned enemies they must stop and subjugate. In a career as a professional and manager in regulation, public policy and administrative law and in the private sector dealing with all that, I saw these problems firsthand and continuously.
With the CWA, one main issue is the definition of water types and bodies to which federal regulation applies. Surely it applies to our great lakes and rivers, but just as surely not to the rain that soaks into a farmer’s field or our lawns.
In presidential administrations since 1972, federal agencies, goaded by environmental activists, expanded the CWA’s reach to include isolated ponds, abandoned gravel pits, ephemeral waters and seasonal wetlands distant from and not directly feeding into navigable waterways. In two major cases, the Supreme Court struck down some of these exotic attempts, but did not define the limits of federal CWA authority. That, of course, was the duty of Congress.
As part of the Obama Administration’s transformative special-interest progressive agendas, the Environmental Protection Agency (EPA) in 2015 lopped off “navigable” from the term “navigable waters of the United States”. Thus, they sought to give federal bureaucrats virtually unlimited authority in water matters. Again the Supreme Court blocked this risible over-reach.
Recently, the Trump EPA sensibly adopted the Navigable Waters Protection Rule to rein in those excesses and sensibly clarify waters subject to federal control. They include: territorial seas and traditional navigable waters; perennial and intermittent tributaries connecting to them; certain, lakes, ponds and impoundments (generally developed or managed by the Army Corps of Engineers); and wetlands adjacent to jurisdictional waters.
Waters not subject to federal control are: features containing water only directly from rain or snowfall; groundwater and ephemeral and seasonal wetlands not directly connected to navigable waters; many ditches, including most farm and roadside ditches; converted cropland; farm and stock watering ponds and waste treatment systems.
Real and necessary reform leaving local matters appropriately to states.
In a future column, I’ll address the other main CWA problem: endless, costly and risky litigation by the environmental zealots to stop reasonable projects.
Ron Knecht, MS, JD & PE(CA), has served Nevadans as state controller, a higher education regent, economist, college teacher and legislator. Contact him at RonKnecht@aol.com.