Tag Archives: water rights

EPA and Regulatory Taking of Private Property

The Fifth Amendment to the U.S. Constitution forbids the government from taking privately owned property without the due process of law, and without just compensation. However, what constitutes a government “taking” and can “due process” be preemptively satisfied by agency regulation? It seems in the case of “wetlands”, the EPA has overreached its authority.

Let us first attempt to identify “wetlands”. According to a comprehensive classification system developed in 1979, a site can be categorized as coastal or inland, yet the classification of “wetland” is not site-specific. Instead, “wetlands” is explained as a hierarchical, progressive structure of connected waters of the state. In what is termed the Cowardin Classification System, “wetlands” is an all-encompassing geographical feature. It consists of linked layers of species and subspecies, soil types and subtypes, an assortment of vegetation, along with various water sources, movements, and duration of presence. Simply stated, a piece of ground that can receive water (including rain) is part of the system that is “wetlands”. The Cowardin System, prepared for the U.S. Fish and Wildlife Service, is an impressive, comprehensive report. Indeed, it has been the de facto standard for EPA employees in assigning a wetlands designation to private property. As a result, EPA’s authority and jurisdiction relating to “Navigable Waters” has multiplied.

As a result, many landowners have lost private property usage and development rights. Effectively, the property owner has suffered a “taking” by the federal government. Such was the case of Mike and Chantell Sackett, an Idaho couple who challenged the EPA’s enforcement actions under §404 (wetlands) of the Clean Water Act (CWA). In a 2013 decision, the Supreme Court ruled unanimously against the EPA. In essence, the agency could not deny the Sacketts a hearing to challenge the agency’s use of CWA authority and jurisdiction over their land. The Sacketts successfully argued the EPA violated their constitutional right to due process. The simple question before the Supreme Court was whether landowners have a right to challenge a legal order of the EPA? The answer was a resounding 9 to 0 “Yes”. The EPA worked to preclude the right to judicial review exercising self-assumed authority in designating wetlands. In the majority opinion, Justice Antonin Scalia wrote that the court rejected EPA’s attempt to use the CWA as a blanket fulfillment of due process. Justice Samuel Alito concurred stating Congress should clarify ambiguities in the CWA.

In the case of Rapanos v. the United States, though the court came to no decision (the parties eventually settled), four Justices spoke against the EPA. Justice Scalia wrote the EPA’s use of the term “waters of the United States” is an overreach in identification of wetlands. The concurring Justices agreed. The court found that occasional, intermittent, or ephemeral water flows may have a hydrological connection. However, “are not sufficient to qualify a wetland as covered by the CWA; it must have a continuous surface connection”.

Likewise, in Solid Waste Agency of Northern Cook County (SWANCC) v. United States Army Corps of Engineers, the Court ruled against EPA. Chief Justice William H. Rehnquist wrote the EPA overreached in its wetland designation of “isolated, abandoned sand and gravel pits with seasonal ponds, which provide migratory bird habitats”. Both the Rapanos and the SWANCC court opinions counter the Cowardin concept of all waters being connected in one wetlands system. Such decisions constitute a slap-of-the-hand by the Supreme Court to EPA and offer an opportunity to discuss the ever increasing dominance of the agency over the lives of everyday citizens.

America’s founders designed our government to serve the people. Increasingly citizens are left with little recourse but to ask the courts to assure their constitutional rights as threatened by dominant government agencies. The EPA, arguably being one of the most insidious, dictatorial federal agencies.

Fortunately, recent Supreme Court decisions and Justice Alito’s urging that Congress address ambiguities have triggered action by some. Several Senators have introduced S.980 a bill that attempts to clarify the CWA by explaining waters of the state are “Navigable-in-fact” and is “permanent, standing, or continuously flowing bodies…from streams, oceans, rivers, and lakes and are connected to waters that are navigable-in-fact“. Passing S. 980 would be a great start to corralling the EPA’s assault on private property rights. This, along with the Supreme Court ruling affirming the 5th amendment right to due process is an indication we are making headway.

Western Water Market Needed

Outdated laws and lack of a water market in western United States, continues to cause problems and increases the chance for dire consequences.

Droughts continue to cause more damage to farmers and the regional economy. As the population rapidly increases in these already dry western states, the water laws must be reformed, at least for now, to allow for:

  • Short-term leases of water.
  • Basic market institutions.
  • Risk-migration tools such as dry-year options.
  • Basic controls such as regulating how much water can be pumped.

Opening up water markets will improve the efficiency of water supply and demand and provide water at the most appropriate price to everyone. Such a system will be better prepared for droughts and other consequences to the increasing water shortage in the west.

EPA’s Expanded Interpretation of its Permit Veto Authority Under the Clean Water Act

Congressional Hearing on the EPA’s Expanded Interpretation of its Permit Veto Authority Under the Clean Water Act

The hearing explored the power and reach of the Environmental Protection Agency’s ability to veto permits after a length of time. The section in question is 404 C, which states;

Section 404(c) authorizes EPA to prohibit, restrict, or deny the discharge of dredged or fill material at defined sites in waters of the United States (including wetlands) whenever it determines, after notice and opportunity for public hearing, that use of such sites for disposal would have an unacceptable adverse impact on one or more of various resources, including fisheries, wildlife, municipal water supplies or recreational areas.

    • Since the Clean Water Act was drafted in 1972, over 2.5 million permits have been filed in conjunction with this section. Of those 2.5 million, only 13 have ever been vetoed. 12 of which, were under republican leadership.
    • Expanded interpretation of the term “Navigable waters” has given the EPA powerful abilities to regulate anything it deems is a navigable water.
    • Of the 13 times that the EPA issued a veto, it was challenged every time. Every time, the EPA won.
    • The costly and lengthy permit process increases the values of the projects, sometimes far too much and they are forced to shut down.
    • Permits should not be allowed to utilize environmental safety as a cause to delay projects.
    • There are numerous recommendations about limiting the amount of time the EPA can veto a permit. The reason this was suggested is because the last permit was delayed after 3 years. That is far too long of time to issue a veto. Congress is currently looking over ways to implement this change to the EPA.
    • Further agenda will look to clarify the scope of jurisdiction of the Clean Water Act and interpret navigable waters.

A good question posed by Democrats is why 13 vetoes are /2.5 million permits a cause for precedence and concern? Republicans responded that they do acknowledge 12 of them were under Republican presidencies, but are still political maneuvers none the less.

Diminishing Returns to Dam Building and Other Supply Solutions

Megadam Projects not Successful” highlights what many in Texas and elsewhere will see as an inconvenient, but critical, truth: there are diminishing returns to structural solutions to water scarcity problems. One reason that it is inconvenient is that there is a lot of money in dam building, and another is that water planners and municipal purveyors are not used to the demand-side approaches to make sure that demand will not exceed supply even in a worst-case-scenario drought.

Sole reliance on supply-side solutions to meet that mandate means the environmentally and fiscally costly construction of some projects that will sit idle most of the time. There are two alternatives that become more and more economically efficient as additional water supply projects come on line:

  • Provision for permanent and temporary market-based re-allocations of existing water rights, which means true private ownership of water consumption rights. Water price differences, or lacking those, water use value differences, will signal which way true markets would move water. It would not be a mass-movement because the prices are changed by the re-allocations, sometimes significantly by small reductions in sellers’ water use. For example, a relatively small re-allocation of irrigation water can slightly increase the value of agricultural water while massively decreasing the cost of municipal water.
  • For water supplies like municipal utilities and irrigation companies, provision of some discounted interruptible service. The option to buy a mix of non-interruptible and discounted interruptible service has been long-time standard fare in industries like natural gas that are much less vulnerable to the double whammy of simultaneous increase in demand and decrease in supply that comes with drought.

But gas providers and users are spending their own money, whereas government-run water purveyors spend someone else’s money. So, as water projects come online it eventually becomes cheaper to provide discounts for service that is interrupted in specified drought conditions than to have a nearly-always idle water project on standby for a rare situation.