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Subject: Clean Water Restoration Act Could Trigger Largest-Ever
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Clean Water Restoration Act Could Trigger Largest-Ever Expansion of
Federal Powers Over Private Property

http://www.nationalcenter.org/TSR062408.html

Clean Water Restoration Act Could Trigger Largest-Ever Expansion
of Federal Powers Over Private Property

DATE: June 24, 2008

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

501 Capitol Court, N.E.

Washington, D.C. 20002

[email-masked]

Footnotes:

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.

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

NOTE: In accordance with Title 17 U.S.C. section 107, any copyrighted

material  herein is distributed without profit or payment to those who
have

expressed  a  prior interest in receiving this information for
non-profit

research and  educational purposes only. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml

This information and much more that you need to know about the ESA, the Klamath
River Basin, and private property rights can be found at The Klamath Bucket
Brigade's website - http://www.klamathbucketbrigade.org/
-- please visit today.

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