Restoring the Clean Water Act, or Expanding It?

Written by Ann Shibler on May 13 2010.

Oozing concern for Americans and their right to clean water — an approach that has universal appeal; who doesn’t want clean water? — Rep. James L. Oberstar (D-Minn.), gives no documentation for his statement in the Washington Times: "Clean, safe water is a right for all Americans. Unless we act, the law can't ensure that right. Because of the Supreme Court decisions, companies have spilled oil, carcinogens and bacteria into the lakes, rivers and other waters without being fined or prosecuted.”

Oberstar, chairman of the Transportation and Infrastructure Committee says his aim is simply to restore the clean water law to its original intent before the 2001 court ruling, via his newly introduced legislation H.R. 5088: America’s Commitment to Clean Water Act . Unfortunately, his new bill would extend federal regulatory jurisdiction over water far beyond the original bill’s language and intent. As Dennis Fink, a county commissioner and vice chairman of the National Association of County Officials’ Water Subcommittee so beautifully explained it:

That may be true as Oberstar remembers it, but congressional documentation disagrees. In 1972, Congress appeared frustrated that the Corps of Engineers was taking a too-narrow view of its authority over traditional navigable waters. Thus, Congress enacted the Clean Water Act, which contains the term “navigable waters” at least 84 times. The intent of the framers (including Oberstar) was to include greater numbers of waters that served as channels of interstate commerce, as long as they connected to land-borne modes of transportation. But a review of the legislative history reveals that, in 1972, Congress did not intend to sweep all intrastate features that did not support commercial traffic into the federal regulatory net, such as isolated waters, drainage ditches, erosional depressions, etc. But by 2001, the long arm of the Corps had reached far beyond these listed features.

Oberstar’s H.R. 5088 would explicitly replace every occurrence of “navigable waters” with “waters of the United States” in the “Federal Water Pollution Control Act” of 1972. In addition, this bill would define “waters of the United States” in an amazingly expansive way, including:

[A]ll other waters, including intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation, or destruction of which does or would affect interstate or foreign commerce, the obligations of the United States under a treaty, or the territory or other property belonging to the United States....

Therefore, by replacing the term “navigable waters” with “waters of the United States,” Oberstar’s clean water bill would explicitly provide federal jurisdiction over “streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds.”

In addition, the bill would provide federal jurisdiction over cropland “that has been converted by draining, dredging, filling, leveling, or other manipulation (including the removal of woody vegetation or any activity that results in impairing or reducing the flow and circulation of water) for the purpose of or to have the effect of making possible the production of an agricultural commodity....”

In response to criticism that his bill doesn’t just restore the 1972 Act, it expands it, Oberstar is reported by CQ to have admitted,  “it would obviate the need for regulators to develop a host of new rules.” In his next statement he contradicts his first: “Simply put, if it was not regulated before 2001, it will not be regulated with the enactment of this legislation.” But then he was reported as saying even he didn’t know “how much more water would fall under the federal government's scope,” in the above mentioned Washington Times article.

Bob Stallman, President of the American Farm Bureau Federation, pointed out their concern over the provisions in the bill extending federal regulatory jurisdiction over prior converted cropland:

Farm Bureau is also deeply concerned that the legislation will overturn the current treatment of prior converted cropland, a regulation that has been in place for nearly two decades. This would effectively give federal control of the development rights of 53 million acres of private land. This extension of federal control over private property rights is dangerous and unprecedented.

In typical Big Brother fashion, the statists in Congress are asserting the erroneous theory that the environment will be instantly improved upon by imposition of heavy-handed laws, rules, regulations, and control over private property. Instead, the states would lose the authority to govern themselves. The bureaucracy would then rule, and the people whose land it is and who have a vested interest in keeping water clean, and who know and understand good stewardship, would be further removed from the process.

As Dennis Fink concludes: “To give them back that power takes away existing local control and places it in the hands of the federal government. I, for one, am against that.”

Too bad Rep. Oberstar isn’t interested in returning to the Constitution’s original intent when it comes to matters like overspending, taxation, foreign entanglements, the Federal Reserve, the Second Amendment, the First Amendment, the Tenth Amendment ... and property rights.

H.R. 5088 is currently sitting in the Subcommittee on Water Resources and Environment which contains 21 Democratic and 15 Republican members. Pressure should be brought to bear on these 36 representatives so that the bill doesn’t make it out onto the floor for a full debate and vote. However, it would also be wise to contact your representative and senators to let them know of your opposition to the expansion of federal regulatory authority to include jurisdiction over every couple of drops of water that happen to occupy the same square inch.

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