The case of Clean Water Act legislation and ever-expanding government

Author: M. Reed Hopper

One of the most insidious pieces of legislation ever introduced in Congress is the so-called Clean Water Restoration Act of 2007, H.R.2421.

That bill, authored by Representative James Oberstar (D), purported to restore the "original intent" of Congress to subject "all" waters in the United States to federal control after the Supreme Court determined in cases like Rapanos v. United States (2006) that the Clean Water Act did not and could not go that far.

The Supreme Court was compelled to that conclusion by the Clean Water Act itself. Congressional intent was clear; the Act expressly limited federal regulation to "navigable waters" while explicitly recognizing the States' "primary responsibility" to protect and preserve nonnavigable, intrastate waters. Nowhere in the Act did Congress express an intent to subject every pond, puddle, and ditch in the Nation to federal control as the bill would have authorized.

There was a reason why Congress chose to regulate "navigable waters" rather than "all" waters when it passed the Act; unlike the freewheeling legislature of today, the Congress of 1972 understood (at least in part) that there are constitutional limits to federal power.

In 2001, the Supreme Court held that Congress had acknowledged those limits by its use of the term "navigable" waters rather than "all" waters when defining federal jurisdiction in the Clean Water Act. The High Court stated that to allow federal regulation of "all" waters, such as "ponds and mudflats," would likely exceed Congress’ constitutional authority and unduly intrude on the traditional power of the States to control local land and water use.

With strong opposition from both parties, H.R.2421 languished in committee. Now, that bill has been reworked and renamed. In its new incarnation, introduced by Representative Oberstar during Earth Week, the bill is euphemistically called "America’s Commitment to Clean Water Act," H.R.5088. Like its predecessor, the new bill aims to exert federal control over "all" waters in the Nation. But it does so by less forthright means.

Instead of purporting to cover "all" waters, as did H.R. 2421, the new bill employs a subterfuge and simply defines the covered waters to include "all" waters in the United States. Like a cuttlefish, the authors of the bill seek to obscure their path with ink.

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. In other words, "all" waters.

The reference to "interstate commerce" is not an acknowledgment that Congress is constrained by its constitutional authority to regulate commerce among the states to a subset of water bodies that actually affect commerce. To the contrary, the bill recites a congressional finding that "all" waters are hydrologically connected, that they do affect commerce, and should be regulated by the federal government: "The pollution, degradation, and destruction of waters of the United States, individually and in the aggregate, have a substantial relation to and effect on interstate commerce." This includes, "geographically isolated or intrastate waters."

This finding is included to provide cover for federal regulators and federal judges to liberally construe the bill to subsume effectively " all" waters, no matter how small or remote.

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, H.R.5088 would give federal bureaucrats unprecedented power to control the use of virtually any wet spot in the Country, and much of the surrounding land. This far exceeds any constitutional power delegated to Congress.

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