April 21, 2010

Clean Water Legislation or Slight of Hand?

By Clean Water Legislation or Slight of Hand?

Author: Reed Hopper

Today, politicians in the House of Representatives introduced H.R.5088, euphemistically named, "America’s Commitment to Clean Water Act." This is a redo of the "Clean Water Restoration Act" which has languished in committee for years and purportedly addresses concerns that the "Clean Water Restoration Act" went too far and authorized federal control of "all" waters in the United States.

But, in fact, it does not address those concerns. This is the same extreme bill dressed up in different clothes.

Although the new version of the bill does not say it covers all interstate and intrastate waters, like the old version did, H.R. 5088 does so in other words. The bill expressly authorizes federal regulation of interstate and "all other waters, including [but not limited to] intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds" as well as all impoundments and tributaries of these waters, including all waters adjacent to these waters.

In response to arguments that the "Clean Water Restoration Act" would have raised a constitutional conflict because that bill purported to allow federal control of all waters to the fullest extent of the Constitution, including activities affecting those waters, the authors of H.R.5088 employ a transparent slight of hand. First, they claim to be doing nothing more than adopting the existing federal regulatory definition of jurisdictional waters and, second, they cite the specific constitutional provisions on which they rely, such as the commerce power. But this is no answer.

The reason the Supreme Court limited federal jurisdiction under the Clean Water Act in SWANCC (2001) and Rapanos (2006) is because the Corps and EPA interpreted their own federal regulations too broadly–potentially exceeding the commerce power. Those overly broad regulatory interpretations would have resulted in a constitutional conflict if the Supreme Court had not placed some limits on federal authority by narrowly reading the language used in the Clean Water Act.

Expanding the statutory language to encompass the regulatory interpretations the Supreme Court found objectionable in SWANCC and Rapanos does not remove the constitutional conflict. Rather, it heightens the conflict.

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