A “Complete Solution” to California’s Water Problem?

A group of Republican state Senators from California held a new conference wherein they stressed the importance of water to California’s economy and the need for “a complete solution to this complex problem.” (Thanks to Aquafornia for catching this.)

I applaud the sentiment. But I question whether their conviction is actually strong enough to take the kinds of steps necessary to create a “complete” long term solution.

There is less water today, and will likely be less water tomorrow, than the people of California have enjoyed in the past. But the problem is not really the “people” in the sense that we have a growing population. Rather the problem is agriculture. Both the types of livestock and crops we raise, and where we raise them. The Economist has an excellent article that discusses this issue which you can find here.

So…what does a “complete” long term solution look like for California? I see two roads we can go down.

In the first instance, we can look to government regulations to increase efficiencies in how we use water. But we’re not talking about low flow toilets or waterless urinals here. Long term water stability would require some serious regulations, particularly of the agricultural sector. This basically amounts to an end to agriculture as we know it. One can already imagine the howls from Republicans and other small government advocates – and they would have a point.

On the other hand we can commoditize water. Some economists, and the Economist, have suggested exactly that. Price water at its actual value and you will encourage farmers to grow crops appropriate to the local climate and water supply. But many people oppose commoditizing water for fear that the price increases will fall on personal water use and create enormous hardship for the poor. They have a point as well, though I think the greater danger of commoditizing water is the risk of speculation. Look here for an example of how commodity markets can be manipulated. And this too means an end to agriculture as we know it.

Neither solution is going to be popular with farmers.

In the end it comes down to a simple reality – less water. We can drain natural reserves like the Sacramento Delta. We can pump our underground aquifers dry. But while these activities may let us carry on, business as usual, for a few more years or even decades, they are ultimately self-defeating. We need those natural reserves and aquifers to keep the water cycle moving. Destroying them now for relatively short term gain only makes the ultimate accounting that much worse. An ultimate accounting that also means an end to agriculture as we know it.

So, do California’s politicians have the fortitude to really put together a “complete solution to this complex problem”? I sure hope so.

But I’m not holding my breath.

Clean Water Restoration Act Unconstitutional?

The Pacific Legal Foundation recently issued a press release putting forth the argument by attorney Reed Hopper that the Clean Water Restoration Act (CWRA) is unconstitutional. (Thanks to Aquafornia for picking this up) Mr. Hopper is the Principle Attorney for the Pacific Legal Foundation, and represented the petitioner (the winning side) in the Rapanos case.

Is Mr. Hopper correct? Pacific Legal’s press release doesn’t contain much specific information on the reasons for his position – so I asked him. In response to an e-mail inquiring into the basis for his position, Mr. Hopper kindly provided me with a copy of his July 17, 2007 testimony before the Subcommittee of Water Resources and Environment. In that testimony he addresses a previous (though substantively identical) version of the CWRA, and discusses the constitutional problems he sees with it.

Mr. Hopper raises two compelling questions in his testimony: 1) whether the inclusion of non-navigable waters within the CWRA exceeds Congress’ authority under the Commerce Clause; and 2) whether the definition of ‘waters of the United States” which extends “to the fullest extent that these waters…are subject to the legislative power of Congress under the Constitution.” is an effective abdication by Congress of its legislative responsibilities. (S. 787, §4(3)).

As Mr. Hopper points out, the Supreme Court has held,

[W]e have identified three broad categories of activity that Congress may regulate under its commerce power. First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.

U.S. v. Lopez, 514 U.S. 549, 558-559 (1995)(citations omitted). Under which of these three categories, if any, do non-navigable intrastate waters (and activities that effect them) fit? Mr. Hopper contends that they do not fall within either of the first two categories and thus must fall within the third – that they “substantially affect” interstate commerce – for the CWRA to be constitutional. Mr. Hopper makes a compelling case that they do not, as they facially have nothing to do with interstate economic activities.

As to the argument that Congress is essentially abdicating its legislative responsibilities to the courts, I am not sure that I agree. I do however agree that the language is an explicit invitation for litigation over the “fullest extent” of Congress’ legislative power. But, given the inevitability that the constitutionality of the CWRA will be litigated whether or not the language is there, this is probably an argument of little moment.

If the CWRA is passed into law by Congress I do not doubt that Mr. Hopper, or some other attorney, will have an opportunity to argue these questions before the Supreme Court. But, Mr. Hopper’s position, and the Supreme Court’s decision in Rapanos, leaves me with a question. Is the analysis factually out of date?

The discussion over the constitutionality of the CWRA focuses on water as a means of conveyance, like a road or rail line. This is understandable in the context of the Clean Water Act’s reference to “navigable” waters. But ever increasingly water is considered – first and foremost – a resource. Further, it is a resource that is regularly shipped across state lines by a multi-billion dollar bottled water industry. It is also a resource that the States themselves are fighting over, sometimes to the point of litigation. Water has become a commodity. And it is a commodity that is critical to innumerable industries (see this article for examples).

It is not hard for me to imagine that activities that affect apparently “intrastate” bodies of water or wetlands would have a deleterious effect on the availability of water within a State, and thus affect the pattern of commerce relating to – or dependant on – water. Any individual instance may have a negligible impact overall, but that is irrelevant. In Maryland v. Wirtz, 392 U.S. 183 (1968) the Supreme Court noted, “[t]he Court has said only that where a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence." Id. at 197, n. 27. If water is viewed as a pervasive commodity, then an argument can be made that a regulatory statute governing its treatment bears a “substantial relation” to commerce.

Legislative Sabotage?

Controversy has erupted in Florida with the recent approval of Senate Bill 2080 by the Florida legislature. The purported purpose of the bill was to encourage water conservation by making it easier for homeowners to replace vegetation – like St. Augustine grass – with vegetation that requires less water.

According to some, the bill has been sabotaged.

At the last minute the bill was amended to provide sweeping power to the executive directors of Florida’s five water-management districts. If Governor Crist signs the bill into law, those five individuals will have the power to unilaterally approve water-use and wetland destruction permits for large projects without formal input from either the relevant water district governing boards or the public.

So why sabotage? Well, it turns out that no one seems to know how the amendment made it into the bill. According to Senate records, the amendment was added by one of the bill’s sponsors – Senator J.D. Alexander. Senator Alexander is apparently not commenting, but his co-sponsor, Senator Carey Baker, says the records are wrong and that neither he nor Senator Alexander knew of the amendment until after they voted for the bill. What?

Some have called for Governor Crist to veto the bill. Senator Carey says that if the Governor does not, then he will work during the next session to fix it. The concern is that concentrating this sort of authority in five people makes the permitting process highly susceptible to pressure from both politicians (who approve the hiring of the directors) and business interests seeking permits.

The arguments against the amendment are obvious and clichés about power corrupting spring easily to mind. But I am still struck by the fact that no one can seem to identify where the amendment came from. Senator Baker seems to suggest that it may have slipped into the bill accidentally. How does that happen without anyone noticing?

The Clean Water Restoration Act

There is a fight brewing – big surprise – over the Clean Water Restoration Act of 2009 (“CWRA”)(S.787). The stated purpose of the CWRA is to “restore” the authority of the EPA under the Clean Water Act and roll back the clock to the state of the law prior to the U.S. Supreme Court’s rulings in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (“SWANCC”) and Rapanos v. United States, 547 U.S. 715 (2006).

According to U.S. Representative James Oberstar (D-MN) and Senator Russ Feingold (D-WI), as well as environmentalists who support the bill, the CWRA is needed to restore the original authority of the EPA under the Clean Water Act. Others disagree and allege that the CWRA vastly expands the scope of the EPA’s authority to waters never contemplated under the Clean Water Act.

The crux of the dispute is that the Clean Water Act of 1972 (as amended) does not clearly define what waters it applies to. The Act refers to “navigable waters” (33 U.S.C. §§1311(a) and 1342(a)), but then defines that term as “the waters of the United States, including the territorial seas.” (§1362(7)) Prior to the Supreme Court’s decisions in SWANCC and Rapanos, the Act was believed by some to apply broadly to non-navigable (in the traditional sense of the word) bodies of water, including intrastate wetlands. SWANCC and Rapanos changed all that. Under those decisions, the extent of the Clean Water Act was read to include only “relatively permanent, standing or continuously flowing bodies of water…” Rapanos at 739. Further, the Court read the Act to cover only those wetlands with a continuous surface connection to an otherwise covered “water”. Id. at 742. This had the effect of excluding numerous intrastate “waters” and wetlands that had previously been deemed to fall within the scope of the Act.

So – here comes the CWRA. This legislation will either “restore” or “dramatically expand” federal jurisdiction under the Act – depending on whether you support or oppose it. The CWRA would extend the Act to include, “all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing...” (S. 787, §4(3)). In comparing this definition with the one currently found in the Act, I think I have to agree that this expands - not restores - federal jurisdiction under the Act. Environmentalists may not be happy with the Supreme Court’s reading of the Act in Rapanos, but it is reasonable. Those who dislike the decision should vent their ire not at the Supreme Court, but at the legislators who failed to adequately describe what the Act was supposed to cover. The more important question however is not whether the CWRA is restoration or expansion, but whether or not it is a good idea of itself.

As a general proposition, I am often leery of attempts to expand federal regulatory authority for the simple reason that there are often much more efficient means of addressing our problems on a local level. Despite this, there are numerous areas where federal regulation is not only beneficial, but indispensable. One need only look at where the deregulation of the financial industry has gotten us to see a dramatic example of the need for regulation. As to the CWRA, I am mindful of the expansion of federal jurisdiction it entails, but that is outweighed in my mind by the simple fact that water – like the financial industry – is all interconnected. It is a fundamentally dynamic resource that is constantly cycling through our environment – much like air. As such, I have difficulty truly imagining water that is solely “intrastate” or otherwise completely isolated from all other water sources or supplies. To me, that fact weighs heavily in favor of comprehensive regulatory controls that provide consistent treatment of water nationwide.