Identifying the Problems with the Clean Water Act   Leave a comment

The Corps of Engineers and the EPA have a history of heavy-handed and arbitrary enforcement of the Clean Water Act. I’m familiar with a lot of this through contacts with small miners operating here in Alaska. Contrary to the plain language of the act and past agency practice, the EPA claims it has authority under Section 404(c) to, at any time, revoke existing “dredge and fill” permits issued by the Corps under Section 404(a).

First, you have to understand that the cost of a wetlands permit is prohibitive, averaging 788 days and $271,596 for an individual permit and 313 days and $28,915 for a nationwide permit. This doesn’t include costs of mitigation or design changes. It’s estimated that over $1.7 BILLION is spent each year by the private and public sectors obtaining wetlands permits.

Second, under the EPA’s interpretation of its “veto” power, permit holders rarely receive a final permit. They remain in regulatory limbo, frustrated by an uncertainty that discourages productive investment and threatens property rights.

Third, the EPA frequently overrides the Corps’ enforcement decisions, prosecuting landowners for Clean Water Act violations—even when the Corps has determined that no violation exists. This activity sometimes occurs at the state level, where, for example, a state issues a Clean Water Act permit through an EPA-approved delegated program, only to have that permit unilaterally revoked or modified by the EPA via a process called “over-filing.” Such unilateral revocation is unacceptable: Innocent citizens should not be made to suffer because of inter-agency disputes.

Perhaps the most insidious use of federal power under the Clean Water Act involves the Corps’ and EPA’s increasing use of “warning letters,” “cease and desist” directives, and compliance orders to browbeat small landowners into submission. Using the threat of ruinous civil fines and criminal prosecution, these agencies rely on intimidation to compel landowner action without a hearing or proof of violation. This practice discourages investment while unfairly constraining the reasonable use of land. Here in Alaska, the EPA has ruled that placer miners must achieve drinking water quality in their effluent before release into a “navigable stream”. The problem with this is that Alaskan streams rarely are drinking water quality in the absence of placer mining. Many of our streams are glacier-fed, meaning they are muddy and mineral-laden. Pay no attention to the natural conditions. We only want drinking-water quality effluent from that muddy stream.

Finally, the Clean Water Act’s citizen lawsuit provision is flawed. A virtual cottage industry exists where opportunistic litigants bring imaginary or exaggerated claims in court against an individual or small business in hopes that the risk of enormous fines will precipitate a lucrative settlement, delay or run up the cost of a disfavored project or simply cause the project not to be built by driving the developer out of business. These types of “nuisance” suits provide no environmental benefit while stymieing economic growth.

By any other name, this would be considered tyranny. When we see this sort of behavior in other countries, we call it what it is — dictatorial rule, human rights violation. Yet, we seem blissfully unaware of it in our own country until it happens to us.

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