When Waters Aren’t Waters At All: Executive Branch Over-Reaching And Federal Land Use Controls (Part 1) – Guest Essayist: Andrew Langer

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How We Got Here

There is a truism when it comes to the power of the federal executive branch: over time, the power of that branch grows.

This can best be measured by the size and scope of the regulatory state. Every five years, the US Small Business Administration assesses the impact of federal regulations on the US economy.  Every five years, the SBA’s regulatory impact report shows growth.  Even under President George W. Bush, the impact of regulations grew by 10% from 2000-2005.  Under the Democratic-controlled House, and the first few years of the Obama administration, that number shot up to 35% growth of the regulatory state. Regulations cost the economy $1.1 Trillion as of 2005.  That number grew to $1.75 Trillion by 2010, and assuming that the regulatory state grew at the same pace between 2010 and 2015 (not an unrealistic assumption giving the unrelenting growth in federal regulations under President Obama), when that report is released later this year we are looking at a regulatory state that will cost the American economy, directly, nearly $2.4 trillion (or, another 50% more than the President’s proposed budget)!

It is inexorable:  mandates grow from pilot programs, to regulatory programs, to programs with civil penalties, to rules with criminal penalties, exacerbated by a legislative branch that passes laws that are vague, and open to wild interpretation by federal agencies.

One of the most troublesome examples of this is the growth in regulations that serve to bring land and water under greater federal control, and the severity of that control (severity being defined as the level of regulation of that parcel of land or water)—and the constant move to put lands under federal control under greater amounts of that control.

Control over land and water has always been a contentious issue.  The founders never envisioned that the federal government would (or could) own or control the vast amounts of land under its jurisdiction today.  Historically, if you look at states west of the Mississippi, the federal government has maintained increasing levels of control over land, with some states showing 70, 80, 90% federal ownership of land.  History has also shown that the longer those lands remain under federal ownership, the greater the level of regulation of that land.  Land that might have been used for grazing or timber production gets set aside as a monument.  Land that gets set aside as a national monument gets turned into a recreation area.  Land that gets turned into a recreation area becomes wilderness, and so on.

With each new designation, a new and more onerous set of rules applies—to the point that in places like Tombstone, AZ, their city was unable to fix an essential pipeline carrying the city’s municipal water supply, because that pipeline crossed federal wilderness area.

Until the early 1970s, people east of the Mississippi were largely immune from this kind of control, but that all changed with the passage of two seminal environmental laws—the Endangered Species Act and the Clean Water Act.  The ESA, contrary to popular belief, is less about species preservation and more about land use regulation (which is why, some scholars believe, so few species have ever come off of the endangered species list).

The Clean Water Act, meanwhile, was about keeping America’s waterways clear.  Not to be confused with the Safe Drinking Water Act, which passed several years after the CWA and sets standards from drinking water, run-off, etc, the CWA builds on earlier laws regulating the discharge of pollutants into “navigable waterways”, and its passage in 1972 opened one of the longest-running and most-contentious definitional debates in public policy history: just what does “navigable” mean.

As raised at a joint-hearing on potential changes to the definition of “Waters of the United States”, members of Congress on both sides of the aisle rightly point out that the CWA was passed in response to situations like the Cuyahoga River catching on fire.  But this is where the agreement ended, as both sides presented a narrative regarding regulatory history, interpretation, and impacts that differed widely.

Here’s the fact: by every measure, America’s environment has improved and continues to improve, markedly.  American Enterprise Institute scholar, Steven Hayward, in his annual publication of “Leading Environmental Indicators” charts the continued improvement of environmental health.

But it is also as true that the reach of the federal government into regulating waterways has moved at an ever-increasing rate.

Now, assuming that the motivations of the environmental community were about public health and welfare, the questions we would be asking ourselves (now that the CWA is more than 22 years old) are:  “how clean is clean?” and “how much are we willing to spend to gain marginal benefits in environmental health and safety?”  These are the fundamental scientific questions, determining whether or not a policy is sensible, both from a public health and a public policy standpoint.

But because the left has always played a game of “sleight of hand” on these matters, the debate is really over land use and control.

Andrew Langer is President of the Institute for Liberty, and host host of the LangerCast, which can be found at RELMNetwork.com ( http://www.relmnetwork.com/#!langerpopp/cdo6 )

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1 reply
  1. Ralph Howarth
    Ralph Howarth says:

    The only relevant powers the federal government has in any arena outside of national defense, regulating the federal courts, and establishing post offices and post roads is to establish a standard of weights and measures for the whole country to use and to make conveyance of goods across state lines regular and standardized. Everything else is left to the states. If there is a dispute among states then the federal court system acts like an arbiter, not a controller, per Art 3 Sec 2. This is relevant for any dispute of land and water among the states. Congress, in its regulation of the court system, can draw rules of arbitration to summarize the arbitration process of disputes of land and water such that it becomes a defacto rules of settlement. Such would accomplish much of what is the present EPA and laws for protecting the environment and be constitutional. As it is now, the only constitutional power the EPA has is simply to publish land and water use statistics as an adjunct arbitration investigative function. And much of that function is already a wasteful duplication within other federal agencies.

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