Editorial: Clean Water Act Rulings Are Not So Simple

So divided was the U.S. Supreme Court over the Clean Water Act that on June 19th it delivered five separate opinions. A prevailing question is whether the federal regulations apply to wetlands that are not rivers and lakes. Business groups and property rights advocates praised the ruling. Environmental advocates were relieved that the 5-4 ruling fell one short of potentially opening up sensitive wetlands to development.

In two cases involving Michigan developers, the court set aside lower court rulings that favored federal regulators. In one case a man had faced imprisonment and a multi-million-dollar fine for filling in wetlands to build a shopping center. The land was 20 miles from the nearest navigable waters.

In the other, the U.S. Army Corps of Engineers prevented a woman from building condominiums on 16 acres of woods near a ditch that eventually connected to a lake about a mile away.

Chief Justice John Roberts was disappointed that the court could not agree on the reach of the Clean Water Act. Justice Antonin Scalia, who wrote the main opinion, was reported to have written scathingly of “an immense expansion of federal regulation of land use” that has occurred over the past five presidential administrations. Scalia said that federally regulated waters of the United States “include storm drains, roadside ditches, ripples of sand in the desert that may contain water once a year and lands that are covered by floodwaters every 100 years.”

Are these seemingly far-reaching regulations always beyond the pale? One problem is that water quality is not always the issue. Decisions often focus on whether proposed development will cause harm to others. That is not a misplaced consideration.

Today Gulf Coast property owners are embroiled in turmoil involving damage caused by Hurricane Katrina. In the case of natural disasters, how much federal help should victims be given? How much should taxpayers be expected to pay to those who willingly build at sites known to be vulnerable to natural disasters? On the Gulf Coast, residents are still fighting with the Federal Emergency Management Agency over debris removal. Making matters worse for Katrina victims, the courts have ruled in favor of insurance companies that do not want to pay for storm-surge damage. Where people are allowed to build is a critical question. It doesn’t just involve seacoasts.

Following the disastrous flood at Rapid City, S.D., in 1972, the question as to where structures could remain or be rebuilt was a key issue. A virtually new Boy’s Club building, located fewer than 20 feet away from Rapid Creek, had to be relocated, though remaining at its present site represented no risk to occupants. However, the wall of water that struck the building was redirected to other areas, and the prevailing official opinion was that it increased the danger to others. So the club was rebuilt elsewhere. The question about water problems developers can create for others is not moot.

Justice Scalia may not be right when he implies that regulation of rainwater runoff and storm drains is wrong. As we are learning in the wake of Katrina, structures built in the path of rampaging water can redirect the flow in such a manner as to create new problems. Thus, some critics contend that levee construction can exacerbate flood problems. With rain runoff, the results are the same, but the causes are different. Often projects replace acres of greenery (that normally absorbs runoff) with buildings and acres of macadam parking lots. Water that would usually just soak into the ground becomes, instead, a torrent seeking a place to go. Not infrequently, the result is overburdened drain systems and temporary flooding.

The 350-mile-long New Orleans area levee and floodwall system might represent an example of how raging water is diverted. Engineers are presently homing in on that aspect of the disaster.

Property rights are paramount in the thoughts of landowners critical of federal regulations. They are besieged by a mix of regulations that focus on supposedly clean water issues and on environmental concerns. Court decisions are sometimes so outlandish as to seem moronic. Frequently decisions are decided on the basis of political interests. Still, an unfair application of misinterpreted regulations can result in a loss of property value.

The issue of building in floodplains is part of the mess. Strictly enforced codes would simplify matters. Unfortunately political pressure overrules and development does take place in areas known to be vulnerable to flooding. When disaster strikes, who should pay?

Determining what is a floodplain is not always easy. During the lifetime of some residents of the Florence, S.D., area, Grass Lake did not exist. Yet old maps dating back many decades indicated it was there at one time. Like Phoenix rising, in recent years Grass Lake emerged again and is now favored for fishing. For how many decades will it remain? What about floodplain construction?

It seems prudent to exploit common sense when brainstorming Clean Water Act regulations and lawsuits. On the other hand, Mother Nature sometimes rears up to kick common sense in the head.

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