24 Jun 2008 Clean Water Restoration Act Could Trigger Largest-Ever Expansion of Federal Powers Over Private Property
BACKGROUND: The Clean Water Act (CWA) of 1972 makes it a crime to discharge pollutants into the “navigable waters of the United States.” However, what constitutes a “pollutant” or “navigable water” has often left federal regulators scratching their heads and landowners licking their wounds.
For instance, a father and son from Florida were fined and forced to serve 21 months in prison1 for filling supposed wetlands on their property in violation of the CWA. However, a district court judge later found it “disturbing” that the two were guilty of nothing more than placing “clean fill dirt on a plot of subdivided dry land.”2
The General Accountability Office brought the regulatory confusion to light in 2004 when it reported that federal regulators tasked with enforcing the CWA couldn’t even agree on what constituted a protected wetland under the Act.
In separate cases in 2001 and 2006, the U.S. Supreme Court provided some clarity to the CWA when it ruled that federal regulators had overstepped their bounds when regulating wetlands under the Act. These rulings, however, sparked the ire of environmentalists, who claim the CWA was meant to regulate all waters of the U.S., as opposed to “navigable waters.”
In response, in May 2007, Congressman James Oberstar (D-MN) introduced the “Clean Water Restoration Act” (H.R. 2421), which, he says, would “correct an error made by the Supreme Court.”3 Senator Russ Feingold (D-WI) introduced a companion bill, S. 1870, in the Senate.
The Clean Water Restoration Act would replace the term “navigable waters of the United States” in the CWA with “waters of the United States.” Environmental groups claim this merely restores the original intent of the CWA. Critics, however, say this change would substantially broaden of the scope of the CWA, threaten property rights and create even more confusion over the federal jurisdiction of the Act.
TEN SECOND RESPONSE: The Clean Water Restoration Act is less about protecting our nation’s waters and more about expanding the federal government’s power to regulate private property.
THIRTY SECOND RESPONSE: In ruling that federal regulators had overstepped their bounds when enforcing the Clean Water Act, the U.S. Supreme Court brought much-needed common sense to the law. Now some in Congress want to change the law to give federal regulators power over every “prairie pothole,” “wet meadow” and “mudflat”4 in the country. This would not result in cleaner water, but it would bring misery to private landowners and confusion to federal agencies tasked with enforcing the new law.
DISCUSSION: For more than three decades, enforcement of the Federal Water Pollution Control Act, otherwise know as the Clean Water Act, has been mired in conflict wrought by ambiguity. The Act makes it illegal to discharge pollutants into the “navigable waters” of the United States. The Act also requires a landowner to obtain a permit from the federal government before he deposits any “dredged or fill material” into a “navigable water.”5 “Navigable waters” are loosely defined in the Act as “the waters of the United States, including territorial seas.”6
This loose definition has left federal regulators, specifically the Environmental Protection Agency and the U.S. Army Corps of Engineers, with a great deal of discretion in determining the boundaries of their jurisdiction under the Act.
The Army Corps includes “wetlands” in its definition of “waters of the United States” and broadly defines wetlands as the following:
[T]hose areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.”7
Yet as the General Accountability Office (GAO) reports, much confusion surrounds what exactly constitutes a wetland under the Corps’ definition, even among Corps staff:
Corps districts differ in how they interpret and apply the federal regulations when determining which waters and wetlands are subject to federal jurisdiction. For example, one district generally regulates wetlands located within 200 feet of other jurisdictional waters, while other districts consider the proximity of wetlands to other jurisdictional waters without any reference to a specific linear distance. Additionally, some districts assert jurisdiction over all wetlands located in the 100-year floodplain, while others do not consider floodplains as a factor.8
As one Corps official told the GAO, “if he asked three different district staff to make a jurisdictional determination, he would probably get three different assessments.”9
The U.S. Supreme Court brought some clarification in two high-profile cases: Solid Waste Agency of Northern Cook County (SWANCC) v. United States Army Corps of Engineers (2001) and Rapanos v. United States (2006). In both, the court clearly limited the federal government’s jurisdiction under the CWA.
In the SWANCC decision, the court ruled that wetlands that are not located directly adjacent to a navigable waterway do not fall under the jurisdiction of the CWA.10 The Court ruled similarly in the Rapanos decision. As Justice Scalia wrote in a majority decision:
The restriction of “the waters of the United States” to exclude channels containing merely intermittent or ephemeral flow also accords with the commonsense understanding of the term. In applying the definition to “ephemeral streams,” “wet meadows,” storm sewers and culverts, “directional sheet flow during storm events,” drain tiles, man-made drainage ditches, and dry arroyos in the middle of the desert, the Corps has stretched the term “waters of the United States” beyond parody. The plain language of the statute simply does not authorize this “Land Is Waters” approach to federal jurisdiction.
In addition, the Act’s use of the traditional phrase “navigable waters” (the defined term) further confirms that it confers jurisdiction only over relatively permanent bodies of water.11
In the Rapanos case, the Environmental Protection Agency had charged a property owner with wetlands destruction under the CWA because he had filled in century-old drainage ditches on this property without obtaining permita. The ditches lead to a non-navigable creek, which joined a river some 20 miles distant.12
Rep. Oberstar’s Clean Water Restoration Act would remove the term “navigable waters” where it appears in the CWA and replace it with the term “waters of the United States.” It would also define “waters of the United States” as the following:
All waters subject to the ebb and flow of the tide, the territorial seas, and 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, to the fullest extent that these waters, or activities affecting these waters, are subject to the legislative power of Congress under the Constitution.13
Such a broad definition would effectively undo the limitations the Supreme Court placed on the CWA and bring federal government regulation to countless acres of private property. Isolated waters and seasonal wetlands, which may have no meaningful impact on navigable waterways, would be subject to federal regulation.
The Clean Water Restoration Act also would raise a significant constitutional question. According to M. Reed Hopper, Principal Attorney with the Pacific Legal Foundation and the successful lead attorney in the Rapanos case before the Supreme Court, because “traditional navigable waters can be used as channels of interstate commerce,”14 they can conceivably fall within federal jurisdiction under the Commerce Clause of the U.S. Constitution. However, as Hopper points out:
[T]he waters encompassed in the Clean Water Restoration Act include all nonnavigable waters. Therefore, the regulation of such waters is not regulation of the use of channels of interstate commerce…
Rather than define the reasonable scope of its federal power to regulate inter- and intra-state waters in the first instance, as it should do, the bill authorizes Congress to defer to the courts to determine “the fullest extent that these waters, or activities affecting these waters, are subject to the legislative power of Congress under the Constitution.” In effect, the Act is an abdication of the legislative role.15
While expand the federal government’s jurisdiction under the CWA, the Clean Water Restoration Act would restore confusion to enforcement of the Act and raise the potential for more lawsuits and regulatory abuse.
WHAT OTHERS ARE SAYING:
U.S. Representative John Mica (R-FL):
I am concerned that [the Clean Water Restoration Act] will vastly expand Federal powers over private property, upset the long-standing cooperative relationship that the Federal government and the states have had with regard to water management and water quality, and create even more confusion and uncertainty over application and interpretation of the [Clean Water] Act.
These changes would effectively erase many decades of jurisprudence and invite the Federal courts to decide the constitutional limits of Federal authority under the Clean Water Act…
I am very concerned that this bill represents the largest ever expansion of Federal powers over private property and creates a larger cloud of confusion over application and interpretation.16
M. Reed Hopper, Principal Attorney, Pacific Legal Foundation:
This definition of federal authority [in the Clean Water Restoration Act] is not a “restoration” of congressional intent. It far exceeds the jurisdictional scope of the current Clean Water Act as it appears in the text of the statute. It even exceeds the extravagant scope of the existing federal regulations on which the definition is, in part, based. Indeed, with its claim of authority over “all interstate and intrastate waters,” this bill pushes the limits of federal power to an extreme not matched by any other law, probably in the history of this country. Neither an ornamental pond nor the proverbial kitchen sink are excluded.17
Linda Runbeck and Don Parmeter, American Property Coalition:
The federal government would be granted authority, for the first time ever, over every backyard pond, wetland, ditch, culvert, and pipe – literally all wet areas in the United States – under a bill authored by Congressman Jim Oberstar. This bill is an extreme expansion of federal power over private landowners and public lands users…
If the bill is enacted, landowners need be fearful that virtually any land may be part of the “waters of the United States” even for features as innocuous as to whether rainwater or drainage passes and leaves a visible mark…
Landowners will quickly learn they are “polluters” under regulations containing overbroad definitions of pollutants. In fact, a landowner who deposits fill material, i.e., “pollutants” such as rock, sand or dredged material in locations deemed waters of the United States may face possible criminal liability and steep civil fines for a broad range of activities.
Passage of this bill will lead to a bureaucratic enforcement nightmare and endless litigation, the beneficiaries of which will be environmental attorneys and the multi-billion dollar environmental lobby that can afford them. Without the resources to mount a defense against these forces, the average citizen will have little chance of receiving fair treatment in the political or legal arena.18
Bob Stallman, President, American Farm Bureau:
The legislation would grant – for the first time ever – the Environmental Protection Agency and the Corps of Engineers jurisdiction over all wet areas within a state, including groundwater, ditches, pipes, streets, municipal storm drains and gutters. It would grant these same agencies – for the first time ever – authority over all activities affecting those waters, regardless of whether the activity is occurring in water or adds a pollutant…
What does this mean for the typical residential landowner? Likely, a lot of hassle, expense and time spent in court. The legislation clearly states “all waters.” Those of you with farm, stock and even goldfish ponds – beware.19
Scott Campbell, Chairman, National Water Resources Association:
The sponsors of this legislation claim: “This bill restores Clean Water Act authority to what existed prior to the Supreme Court’s decisions – it does not expand authority.” This false statement is either predicated upon a fundamental misunderstanding of the Clean Water Act or is an intentional fabrication of the truth in an attempt to garner support of the uninformed, who lack a sufficient comprehension of the wide-ranging consequences of this unconscionable effort to expand federal control over the lives of our citizens and the authority of the States.20
FOR FURTHER INFORMATION:
National Center for Public Policy Research poll showing a majority of Americans oppose Oberstar’s proposal at http://www.nationalcenter.org/PR-CWRA_Poll_041608.html
National Center for Public Policy Research National Policy Analysis paper detailing the costs of the Clean Water Restoration Act to sportsmen at http://www.nationalcenter.org/NPA567.html
National Center for Public Policy Research April 2008 coalition letter opposing the Clean Water Restoration Act, signed by 53 organizations at http://www.nationalcenter.org/PR-CWRA_Letter2_040908.html
National Center for Public Policy Research October 2007 coalition letter opposing the Clean Water Restoration Act, signed by over 100 groups and prominent individuals at http://www.nationalcenter.org/PR_Clean_Water_Restoration_Act.100907.html
National Center for Public Policy Research round-up of congressional hearings held on the Oberstar/Feingold bill at http://www.nationalcenter.org/2008/04/flaws-in-clean-water-restoration-act.html
A Washington Examiner article at http://www.examiner.com/a-1363754~New__Clean_Water__bill_is_all_wet.html
by Peyton Knight
The National Center for Public Policy Research
20 F Street NW, Suite 700 Washington, D.C. 20001
1 R.J. Smith, “Clean Water Act Sanity on the Horizon,” Human Events, July 3, 2006, available at http://www.humanevents.com/article.php?id=15854 as of June 24, 2008.
2 M. Reed Hopper, “Hearing on: Status of the Nation’s Waters, Including Wetlands, Under the Jurisdiction of the Federal Water Pollution Control Act,” Testimony submitted to the United States House of Representatives Committee on Transportation and Infrastructure Subcommittee on Water Resources and Environment, July 17, 2007, which was available for download at http://transportation.house.gov/hearings/Testimony.aspx?TID=1541 as of August 24, 2007.
3 Lucy Kafanov, “Wetlands: Bill Would Restore U.S. Regulatory Powers,” Environment and Energy Publishing, Land Letter, May 24, 2007.
4 H.R. 2421, “Clean Water Restoration Act of 2007,” Section 4(3), which states:
Section 502 of the Federal Water Pollution Control Act (33 U.S.C. 1362) is amended by adding at the end the following:
(24) WATERS OF THE UNITED STATES- The term `waters of the United States’ means all waters subject to the ebb and flow of the tide, the territorial seas, and 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, to the fullest extent that these waters, or activities affecting these waters, are subject to the legislative power of Congress under the Constitution.’.
5 “Federal Water Pollution Control Act,” Section 404(a), which was available for download at http://www.epa.gov/r5water/cwa.htm as of August 28, 2007, and states:
The Secretary may issue permits, after notice and opportunity for public hearings for the discharge of dredged or fill material into the navigable waters at specified disposal sites. Not later than the fifteenth day after the date an applicant submits all the information required to complete an application for a permit under this subsection, the Secretary shall publish the notice required by this subsection.
6 “Federal Water Pollution Control Act,” Section 502(7), which was available for download at http://www.epa.gov/r5water/cwa.htm as of August 28, 2007, and states:
The term ”navigable waters” means the waters of the United States, including the territorial seas.
7 33 CFR Part 328.3(b), “Definition of Waters of the United States,” which was available for download at http://www.usace.army.mil/cw/cecwo/reg/33cfr328.htm as of August 30, 2007.
8 U.S. General Accounting Office, “Waters and Wetlands: Corps of Engineers Needs to Evaluate Its District Office Practices in Determining Jurisdiction,” GAO-04-297, February 2004, available for download at http://www.gao.gov/new.items/d04297.pdf as of June 24, 2008.
9 Ibid, page 22.
10 James M. Taylor, “Bush Declines to Issue Wetlands Regulations,” The Heartland Institute, February 1, 2004, available for download at http://www.heartland.org/Article.cfm?artId=14292 as of June 24, 2008.
11 Supreme Court of the United States, “John A. Rapanos Et Uxl, Et Al., Petitioners v. United States,” No. 04-1034, June 19, 2006, available at http://www.law.cornell.edu/supct/html/04-1034.ZO.html as of August 24, 2007.
12 The National Center for Public Policy Research, “Move Sand, Risk Prison,” Shattered Dreams: 100 Stories of Government Abuse, page 102, 2007, available for free download at http://www.nationalcenter.org/ShatteredDreams.html as of June 24, 2008.
13 H.R. 2421, “Clean Water Restoration Act of 2007,” Section 4(3).
14 M. Reed Hopper, “Hearing on: Status of the Nation’s Waters, Including Wetlands, Under the Jurisdiction of the Federal Water Pollution Control Act,” Testimony submitted to the United States House of Representatives Committee on Transportation and Infrastructure Subcommittee on Water Resources and Environment, page 7, July 17, 2007, available for download at http://transportation.house.gov/hearings/Testimony.aspx?TID=1541 as of August 24, 2007.
15 Ibid, page 7.
16 U.S. Rep. John L. Mica, “Clean Water Bill May Lead to Massive Expansion of Federal Jurisdiction Say Committee GOP Leaders,” Committee on Transportation and Infrastructure, Republicans, Press Release, July 17, 2007, available at http://republicans.transportation.house.gov/news/PRArticle.aspx?NewsID=199 as of June 24, 2008.
17 M. Reed Hopper, “Hearing on: Status of the Nation’s Waters, Including Wetlands, Under the Jurisdiction of the Federal Water Pollution Control Act,” Testimony submitted to the United States House of Representatives Committee on Transportation and Infrastructure Subcommittee on Water Resources and Environment, page 6, July 17, 2007, available for download at http://transportation.house.gov/hearings/Testimony.aspx?TID=1541 as of August 24, 2007.
18 Linda Runbeck and Don Parmeter, “If It’s Wet, Oberstar Says Regulate It,” The Daily Journal, July 3, 2007, available at http://www.fergusfallsjournal.com/news/2007/jun/27/if-its-wet-oberstar-says-regulate-it/ as of August 28, 2007.
19 Bob Stallman, “A Drop of Water, A Load of Regulations,” American Farm Bureau, The Ag Agenda, September, 2007, available at http://www.fb.org/index.php?fuseaction=newsroom.agendafocus&year=2007&file=ag09-2007.html as of August 28, 2007.
20 Scott Campbell, “Clean Water Restoration Act of 2007 Will Trump State Authority,” National Water Resources Association, New Release, May 23, 2007.