Sunday, October 02, 2011


Thanks to my student Sebastián for pointing me to Mark Drajem's recent article on Bloomberg: EPA Boosts Water Policing as Farmers Say Worst Fears Realized. The article describes efforts by the Environmental Protection Agency and the U.S. Army Corps of Engineers to expand their jurisdiction over smaller waterways.

The article focuses on the "fears" of inconvenience and possible limitations on economic activities that may be environmentally destructive. Little context is given for the current proposals. The Clean Water Act built on laws initiated in 1948, was reorganized and signed by President Nixon in 1972 and given its present name under further reorganization in 1977.

The practical impetus for the laws was a wide array of environmental problems resulting from the abuse of waterways throughout the United States, which reached untenable proportions in the mid-20th Century. The constitutional basis for the laws, however, is the Commerce Clause in Aricle I, Section 8, whose very early interpretation gave the Army jurisdiction over navigable waters.

It was found much later that the protection of the waterways themselves requires the protection of adjacent and contributing wetlands. The Drajem article does not make clear the importance of these waterways, echoing the all-too common misconception that streams that do not flow constantly must be unimportant. It is unfortunate that the "fears" mentioned in the article are those of convenience and economic cost; the word "flood" is not used at all, though it should qualify as a concern for any farmer.

The Drajem article does mention the economic benefits of the kinds of regulations being contemplated, but only obliquely. More explanation of these benefits should be given, and also to the ecological context in which the proposed rule-making takes place. As we dramatically simplify both the hydrology and biology of large swaths of farmland, we increase the risk of floods and exposure to crop pests.

As Senator Gaylord Nelson, the founder of Earth Day has written, "The economy is a wholly owned subsidiary of the environment, not the other way around." Those who look at environmentally destructive economic activity as some kind of inherent right exhibit a lack of understanding of the natural systems on which they depend.

In Massachusetts, the Department of Environmental Protection has primary jurisdiction over enforcement of the Clean Water Act and other federal environmental programs. The Environmental Protection Agency allows much of its day-to-day enforcement activity to be carried out by DEP, as it it does with state-level agencies throughout the United States.

In Massachusetts, however, the initial point of contact is usually with volunteer-led conservation commissions at the community level. The Massachusetts Association of Conservation Commissioners -- of which I am a member -- provides educational services to the volunteers and to the professional conservation agents that some of them hire. It is also a place for developers, regulators, consultants, and vendors to stay abreast of both legal and technological developments related to the protection of natural resources. As far as I know, no other state has so much community-level involvement in the enforcement of the Clean Water Act and related statutes.

Every two years (next up: spring 2012), I have the opportunity to teach an upper-level geography course entitled Environmental Regulations, in which we explore the development, implementation, and interpretation of environmental regulations of all kinds. I also teach a course every other autumn (but not again until Fall 2013) that focuses more on land-protection strategies other than regulations, such as conservation easements. Many of the people who take that course (with the awkward title Management and Preservation of the Natural Environment) go on to work or volunteer for many of the commissions, organizations and companies related to MACC.

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