The Volokh Conspiracy

Excellent question, JLA. I start with the premise that decisions should be made on a local basis if that'll cover the relevant interests. Surface waters move pretty quick, so downstream states can be fairly readily affected by upstream states, with respect to large-scale flow alteration and pollutant loadings. Altering wetland function has a fairly modest impact beyond a local area. And groundwater impacts, even less. The "navigable waters" hook is hokey. Ideally, the feds would govern only the most substantial impacts by being excluded from regulating de minimis interstate effects. Can law people effectively create such a limitation?

Between power-crazed centrists, mammy-state liberals, dirt-phobic suburban republicans, newspaper vendors, and assorted bill-pushers, this has got a high chance of getting passed, don't you think? I suggest that opponents go beyond constitutional dogmatism, small-government utopianism, and economic fear-mongering. The voters are primed for other signals. Wish I had a suggestion.

I think you've got the answer right, Jon. We need less federal jurisdiction here, not more. Besides, is there any explicit fix that would be Constitutionally permitted? Maybe if Congress tied federal pork spending to state voluntary adoption of federal rules?

Quit filling in wetlands and polluting lakes and rivers. That usually curbs the needs for such legislation.

Good suggestion. Lets start with New Orleans and the surrounding area. Forcing all human habitation out of the region (except for those living in wetlands/waterways friendly abodes like houseboats and camps) also has the advantage of saving all of that taxpayer money that was going to be spent on rebuilding.

Lets start with New Orleans and the surrounding area. Forcing all human habitation out of the region (except for those living in wetlands/waterways friendly abodes like houseboats and camps) also has the advantage of saving all of that taxpayer money that was going to be spent on rebuilding.

And tell me how you plan to get all that midwestern corn and grain to markets overseas?

J.F., I'm not sure I should even respond. You're not making any sense. Increased erosion in the Mississippi basin has to do with agricultural practices ON LAND, more so than activities in wetlands. And an increase in sediments washing down the river should, on average, protect, not hurt, N.O. But the local dikes send all the new sediment out to the Gulf, so the existing marshes don't get layered up with new mud. That's why N.O. is more vulnerable to hurricanes than it might have been. Good example of a fairly local problem predominantly caused by local action. Local action with funding largely pulled down by log-rolling Louisiana politicians, I presume.

The point is that wetlands are truly a tragedy of the commons in action.

So true -- but sometimes more like tragecomedy... I live near Davenport, which does not have a levee, and which floods when the Mississippi floods. Now you have to know something about the Iowa side of the Mississippi -- the riverbank rises quickly to a bluff, leaving just a narrow strip on the riverbank that floods. In Davenport, most of that area is riverfront park. Over nearly 200 years of habitation the river has driven people back, and since it's not particularly inconvenient -- a few blocks back -- they have pretty much stayed back, building only structures that they plan on taking a flood close to the river.

Now in 93 the floods came further in than they had in recent memory, and so they destroyed some property that had been heretofore thought safe. The city has investigated building a levee back between the riverfront area and the downtown. But the federal goverment doesn't work that way. In order to justify a levee project, it must produce "economic development" which in this case means that the levee must be built out in the channel, therefore "reclaiming" river bottom to use as economic development. This is simply an insane plan -- there is no demand for this land because there is no shortage of downtown property which is safe from flooding because it is a few more blocks up the bluff; moving the riverbank out would lower the value of the naturally flood-safe river-view properties; the "reclaimed" land would probably still flood in a 100-year or 1000-year flood; most importantly, narrowing the channel would significantly worsen flooding on the Illinois side of the river (which has a couple-mile-wide swath of lowland before rising in elevation at that part of the river) and on both sides of the river downstream.

In other words, a plan only a politician could love...

If you leave it up to the individual states, the Feds won't be messing you up.

Well, just looking at Cathy's example shows this simply isn't true. Decisions made on the Iowa side of the river will impact the Illinois side and vice versa let alone down stream communities (and don't forget navigation on the river). And just ask the people desperately trying to stop the invasion of Asian Carp from entering the Great lakes what they think of the decision of private fish farms in Arkansas to introduce those fish into their private ponds to control algae just a few years ago whether that decision had no impact.

J.F., if you read the actual sentences in cathyf's example, and not the sentences already in your head, you would now have in your head the idea that -- in her story -- it is your Federal government's rules that are encouraging Iowa to build out into the river, to Illinois' disadvantage.

Your solution is apparently that no Federal regulation or comprehensive planning (which is what we are really talking about in this case) is the answer. I am not going to defend all the boneheaded decisions or policies of the Feds--they certainly make a bunch. But your solution seems to be to throw the baby out with the bathwater. "The Feds sometimes act irrationally so just end all federal regulation". Of course I realize my Asian Carp example has nothing to do with the clean water act (of course neither does flood control), but it is an example of private action on private land impacting public waterways far away.

Your argument that the Federal government has no business regulating waterways, flood control policy and wetlands seems to be just as applicable to what fish farmers in Arkansas put in their ponds, so the Asian Carp example is very applicable. I would like to know where the distinction is that makes one an acceptable use of federal power but the other not.

As an aside, the Corps has changed a lot since the floods of '93 and slowly but surely they are getting a lot less boneheaded when it comes to flood control and planning. I doubt that the Catch-22 they proposed for Davenport would be repeated today.

My original thought was that it's most reasonable to have Federal jurisdiction over surface water (but not so much for wetlands &groundwater).

Well, I suppose even the most hard core originalist or textualist (or whatever you are calling yourselves today) would argue with the constitutionality of the Rivers and Harbors Act which derives from the Interstate Commerce clause and allows the government to regulate navigable waterways. But the question has always been where does a "navigable waterway" end and exactly when does the actions of a private party on private land potentially impede navigation. That of course is the question on which wetlands regulation and the CWA hangs it hat and what Rapanos is based upon.

Before the 1927 floods, the Federal Government really didn't concern itself much with flood control on a basinwide basis. It managed the rivers mainly for navigation (its proper role as you libertarians would have it) and built its levees, dams and locks mainly for that purpose. Flood control was the responsibility of state and local authorities. 1927 showed the folly of this approach as the lower Mississippi valley was devastated. That is when the Federal Government took over flood control and instituted a comprehensive national program.

The Federal program is far from perfect, but it is a good one, certainly for all its flaws one of the best in the world, and it seeks to balance the various competing interests that often work at cross purposes. It is certainly much better than a patchwork of state or local programs that would certainly dump the problems of richer states onto poorer ones (which is exactly what happened in 1927).

Well, you're confusing dikes with levees and you are partially correct in that erosion from land does contribute to the sediment load in the Mississippi. But, that being said, the sediment load in the river has been halved in the last century and a half because of flood control throughout the basin, not only in the region directly near the mouth of the river. Most of that lost sediment came from bottomlands and floodplains that flooded yearly and are now isolated from the river by levees or no longer flood because of flood control structures like dams.

Actually, sounds more like he's confusing dikes with wing dams, which were installed throughout the river in the 70s and 80s as a response to the clean water act and the difficulty the Army Corps encountered finding areas to place dredged river material (they are required to maintain set depths in the navigational channels). The wing dams operate to increase velocities in the center of the river, scouring the central navigational channel and raising the elevation of the rivers on the side (which in turn has resulted in serious structural problems with the levees - anyone remember the great flood of 1993??)

and Jonathan, sorry I missed your event. Meant to attend, and was actually in the room, but was at the hearing going on.