More Clean Water Act slight of hand

Author:  Reed Hopper

In a recent "Dear Colleague" letter, Representative Oberstar claims his new bill, "America’s Commitment to Clean Water Act" (H.R.5088), would "restore, but not expand, the geographic scope of the Clean Water Act" that existed prior to the U.S. Supreme Court’s decisions in SWANCC and Rapanos. As proof that he is telling the truth, he cites self-serving letters from the EPA and the Corps of Engineers that support his assessment of the bill’s impact. But Mr. Oberstar couldn’t have found a more biased endorsement. These are the very agencies the Supreme Court castigated for their limitless and ever-changing interpretation of the Clean Water Act that exceeded the scope of their own regulations, the plain language of the Act, the clear intent of Congress, and likely even the outside boundaries of the U.S. Constitution. Asking the EPA and Corps if the Supreme Court was wrong in SWANCC and Rapanos is like asking a felon if the jury was wrong to convict him. After more than thirty years of overreaching, power-hungry bureaucrats are not going to admit they exceeded their authority.

As for Mr. Oberstar's claim that "if a discharge into waters of the United States was not subject to being regulated prior to the Supreme Court cases, it will not become regulated because of the passage of this bill," it is a half truth and gives no comfort against continued overreaching. What Mr. Oberstar fails to mention is that although the Clean Water Act prohibits unauthorized discharges into "navigable waters," prior to SWANCC and Rapanos, the EPA and Corps claimed jurisdiction over virtually all waters in the Nation.

 As Justice Scalia noted in Rapanos,

In the last three decades, the Corps and the Environmental Protection Agency (EPA) have interpreted their jurisdiction over "the waters of the United States" to cover 270-to-300 million acres of swampy lands in the United States–including half of Alaska and an area the size of California in the lower 48 States. And that was just the beginning. The Corps has also asserted jurisdiction over virtually any parcel of land containing a channel or conduit–whether man-made or natural, broad or narrow, permanent or ephemeral–through which rainwater or drainage may occasionally or intermittently flow. On this view, the federally regulated "waters of the United States" include storm drains, roadside ditches, ripples of sand in the desert that may contain water once a year, and lands that are covered by floodwaters once every 100 years. Because they include the land containing storm sewers and desert washes, the statutory "waters of the United States" engulf entire cities and immense arid wastelands. In fact, the entire land area of the United States lies in some drainage basin, and an endless network of visible channels furrows the entire surface, containing water ephemerally wherever the rain falls. [According to the Corps and EPA] [a]ny plot of land containing such a channel may potentially be regulated as a "water of the United States."

Without saying so, this is what Mr. Oberstar’s bill is designed to "restore"–a limitless exercise of federal power over all waters in the Nation. In fact, Mr. Oberstar’s original bill, the euphemistically named "Clean Water Restoration Act," literally asserted jurisdiction over "all waters," both navigable and nonnavigable, including any impoundments of these waters. But today, Mr. Oberstar will tell you opponents of the bill read too much into it. He never intended to regulate all waters, just most of them. What Mr. Oberstar and the Corps and EPA fail no comprehend is that words have meaning. The Supreme Court, and for that matter the regulated public, must therefore be forgiven for concluding that when Congress limited federal authority in the Clean Water Act to "navigable waters" that term had to mean something. And it didn’t mean all waters in the United States.

Now, having recognized that the controversial "Clean Water Restoration Act" was setting off alarm bells across the country because of its assertion of federal authority over "all waters," Mr. Oberstar has rewritten the bill in the form of "America’s Commitment to Clean Water Act." This bill no longer uses the term "all waters." It is more subtle. But, the intent is the same–to regulate all waters in the Nation (and much of the land). H.R. 5088 would federalize all navigable waters 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, the use, degradation, or destruction of which does or would affect interstate or foreign commerce" as well as all impoundments and tributaries of these waters, including all waters adjacent to these waters. It would also include those waters that are the subject of international treaties or that might affect federal lands. In other words, "all waters."

So broad is the bill’s definition of covered waters that the only practical limit on federal authority is the regulators’ own subjective judgment. Which is to say, no limit at all. If it were to pass, "America’s Commitment to Clean Water Act" would give federal bureaucrats unprecedented power to control the use of virtually any wet spot in the Country, and much of the surrounding land. In its application, this would far exceed any constitutional power delegated to Congress.