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Reaction from the States: From Coast to Coast, Concerns over Federal Water Legislation Grows

After almost 40 years of environmental progress, members of Congress recently introduced legislation to dramatically change the Clean Water Act called America’s Commitment to Clean Water Act (ACCWA). By greatly expanding the federal government’s authority, the ACCWA could undermine the federal-state partnerships created by the Clean Water Act – potentially giving the federal government jurisdiction over all water in the United States, including interstate waterways and water on private property. 

With Congress considering such a significant change to this historic and successful law, the ACCWA continues to gain attention from local, state and federal officials, along with editorial boards nationwide. Discussions are focusing on two, key areas: the significant expansion the federal government’s authority over water and the repercussions this bill would have on personal property rights.

Let’s look back on some of the latest reactions to this legislation and the concerns being voiced across the nation:

Minnesota

Dennis Fink, a St. Louis County commissioner, chairman of St. Louis County’s Environment and Natural Resource Committee and vice chairman of the National Association of County Officials’ Water Subcommittee, recently wrote an opinion column featured in the Duluth News Tribune, which addressed preserving local governments’ authority under the Clean Water Act titled, “Commissioner’s view: Clean water bill ends local control”:

Ask anyone if clean, safe water is important and the overwhelming response will be an emphatic “YES!” Then ask who should be responsible for guaranteeing that clean, safe water is available and the answer most assuredly will be “everyone.” Specifically, that means every local, state and tribal unit of government, as well as the federal government. Herein lies the problem with U.S. Rep. Jim Oberstar’s new bill, America’s Commitment to the Clean Water Act, and its predecessor, the Clean Water Restoration Act.

“The new act, like its predecessor … simply looks to return the federal law to the way it was before the Supreme Court rulings,” the News Tribune wrote in its April 22 Our View editorial, “Clean Water Act: Clean it up already.” But nothing is simple in government. Not even this compact little bill that proposes nothing more than to change the words “navigable waters” to “waters of the United States” and defines this new term. Both sides of this debate agree “navigable waters” defines and limits the activities and actions of the federal government, specifically the Corps of Engineers and the EPA. And the courts have been acknowledging this same fact since 1973, starting only months after the October 1972 passage of the Clean Water Act.

Oberstar asserts the America’s Commitment to the Clean Water Act will restore the federal government’s authority to a time prior to these two court cases. These cases are about the Corps overreaching its jurisdiction. 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.

Virginia

Meanwhile on the East Coast, Virginia’s Free Lance-Star wrote an editorial piece entitled “Muddy Waters,” which echoed Commissioner Fink’s views:

Displeased with both decisions [in SWANCC and Rapanos], Rep. Jim Oberstar, D-Minn., has introduced a bill called the Clean Water Restoration Act. He says the aim of the bill, which would remove the word “navigable” from the Clean Water Act, is to return the law to its original intent.

Yet, as opponents point out, removing that one word would give the federal government jurisdiction over every stream, farm pond, swamp, and water-holding ditch in the country.

The simple solution: Let the states protect the nation’s waters, with federal backup. State government officials have a better appreciation of local needs than Beltway bureaucrats. With research and guidelines provided by Washington, they can do a good job. If they fail, they are answering to voters.

Protecting our waters is important–but so is protecting our Constitution. The Clean Water Act intentionally limited federal control to navigable waters. Steady as she goes.

Oregon

Earlier this month, the East Oregonian contributed to the steady drumbeat of editorials on the ACCWA by printing a similar piece titled, “Bill should be dead in the water:”

We can blame Rep. James Oberstar, D-Minn., who introduced the America’s Commitment to Clean Water Act. He aims to remove federal Clean Water Act requirements that regulated waterways be navigable. That would mean the government would control and regulate all inland waters on public and private lands.

More specifically, it would dramatically expand the Clean Water Act to give the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers control over all the water – and all the land – in the United States.

Walden correctly calls the bill an unprecedented federal takeover of Oregon water law and an attack on state water rights. The state has several layers of protection that anyone must go through before accessing water in a ditch or stream. We think it works well.

Having Oregonians making decisions about the use of Oregon’s waterways is far better than leaving the job to federal bureaucrats who don’t know a salmon from a sardine or the Columbia River from Columbia University.

Washington

U.S. Representative Doc Hastings from the nearby state of Washington recently penned an opinion column in the Othello Outlook that explains how by expanding the federal government’s authority through the Clean Water Act, ACCWA could add more layers of bureaucratic federal red tape, which could threaten jobs, hurt business and affect job growth:

Unfortunately, the legislation proposed last week removes the word “navigable” from the current definition of the Clean Water Act, effectively giving the federal government control over virtually all waters and making them subject to new and sweeping federal regulations and permitting. Current law allowing federal oversight of major waterways where boat navigation occurs makes sense, sending EPA bureaucrats into our backyards and onto our farms extends the tentacles of the federal government where they do not belong.

This bill is nothing more than another dramatic expansion of federal government control over Americans’ livelihoods and their private property. If this bill were to become law, every body of water in America would be at risk of job-killing federal regulation — from farmers’ irrigation canals to backyard ponds and streams to mud-puddles left by rainstorms. If passed, this legislation could cost thousands of jobs throughout central Washington and the rural western United States.

The bottom line is…this expansion of the Clean Water Act is another step by the federal government to take control of segments of our economy. Jobs and the very viability of farms and small businesses across rural America will be put at risk if this massive power grab succeeds.

After considering these editorials and columns from across the nation, it is apparent that citizens are increasingly concerned about this legislation giving the federal government jurisdiction over all waters. Clearly, states – instead of federal bureaucrats in Washington, D.C.—are best suited to regulate and control local water permitting and authority. Potentially forcing every family farmer and town supervisor from California to Virginia (and everywhere in between) to figure out whether they need permission from the federal government to treat their crops or repair a road is not a commonsense policy.

Commissioner's view: Clean water bill ends local control

Dennis Fink of Duluth, a St. Louis County commissioner, recently wrote the following opinion column about the Clean Water Restoration Act/America’s Commitment to Clean Water Act in the Duluth News Tribune:

Ask anyone if clean, safe water is important and the overwhelming response will be an emphatic “YES!” Then ask who should be responsible for guaranteeing that clean, safe water is available and the answer most assuredly will be “everyone.” Specifically, that means every local, state and tribal unit of government, as well as the federal government. Herein lies the problem with U.S. Rep. Jim Oberstar’s new bill, America’s Commitment to the Clean Water Act, and its predecessor, the Clean Water Restoration Act.

“The new act, like its predecessor … simply looks to return the federal law to the way it was before the Supreme Court rulings,” the News Tribune wrote in its April 22 Our View editorial, “Clean Water Act: Clean it up already.” But nothing is simple in government. Not even this compact little bill that proposes nothing more than to change the words “navigable waters” to “waters of the United States” and defines this new term. Both sides of this debate agree “navigable waters” defines and limits the activities and actions of the federal government, specifically the Corps of Engineers and the EPA. And the courts have been acknowledging this same fact since 1973, starting only months after the October 1972 passage of the Clean Water Act.

Supporters of the new bill say the original intent of the Clean Water Act will be restored. 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.

Ever since its enactment, the Clean Water Act has been in the court system in some form or another. Most cases have centered on jurisdiction and not on clean water. A 2001 Supreme Court decision addressed the validity of the Migratory Bird Rule. This rule, written in 1985, established the primary theory used by federal agencies to assert their jurisdiction over isolated, intrastate waters. It stated that the U.S. Commerce Clause governed the activities of migratory birds. Therefore, any body of water that these birds could identify, in flight, was the jurisdiction of the Corps. The high court disagreed and concluded, “Permitting the Corps to claim federal jurisdiction over isolated ponds and mudflats falling within the ‘Migratory Bird Rule’ would result in a significant infringement on the state’s traditional and primary power of land and water use.” The court declared the bird rule illegal.

The 2005 Rapanos case similarly addressed federal jurisdiction. This time two cases were consolidated (Rapanos and Carabell), both following the same, familiar fact pattern: wetlands miles away from traditional navigable waters that drained through multiple ditches, culverts and creeks, which eventually flowed to traditional navigable waters. Again the court ruled that the Corps had reached well beyond its authority.

Oberstar asserts the America’s Commitment to the Clean Water Act will restore the federal government’s authority to a time prior to these two court cases. These cases are about the Corps overreaching its jurisdiction. 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.

Dennis Fink of Duluth is a St. Louis County commissioner, chairman of St. Louis County’s Environment and Natural Resource Committee and vice chairman of the National Association of County Officials’ Water Subcommittee. He was one of 10 county commissioners nationally who studied the effects of the Clean Water Restoration Act on local government as a member of a National Association of County Officials task force.

Crapo: Feds Overreaching on Water Policy

Senator Mike Crapo (R-Idaho) , ranking member on the Environment and Public Works Subcommittee on Water and Wildlife, recently wrote the following opinion column about the Clean Water Restoration Act in Roll Call:

Americans rely on water for everything from individual survival to agriculture, commerce, transportation, recreation and energy. In the western United States, water is the lifeblood of many communities, and we take pride in our efforts and successes in managing it.

To the dismay of many people, there has been an aggressive push in recent years to drastically expand federal regulatory powers over water. This has been highly controversial, especially in my state of Idaho, where water is at the epicenter of policymaking and integral to our economic well-being. It is time for us to re-evaluate the direction of federal involvement.

Water quality protection in the United States is driven by two federal laws: the Federal Water Pollution Control Act (or Clean Water Act) governs pollution of the nation’s surface waters, while the Safe Drinking Water Act is the key federal law for protecting public water supplies from harmful contaminants. Both laws reserved significant enforcement and implementation responsibilities for state governments, which is a reflection of Congress’ intent for the federal government to partner with states and local communities to protect our waterways and water supplies. Yet the federal government and some Members of Congress appear to be losing sight of that vision.

There are numerous federal laws that are increasingly encroaching on state sovereignty with regard to water policy. One of the driving laws is the Federal Water Pollution Control Act Amendments of 1972, also known as the Clean Water Act. Recent efforts to modify the CWA may provide perhaps the greatest example of federal overreach on water policy, and the so-called Clean Water Restoration Act is example No. 1 for how some Members of Congress want to drastically expand the power of the federal government over surface waters by modifying our current water laws. The bill was introduced in response to two Supreme Court cases, in which the court found that the federal government exceeded its authorities under the CWA by regulating areas that had no direct connection to relatively permanent bodies of water.

Farmers in my state are particularly concerned that this legislation would allow the federal government to aggressively regulate farming practices under the Clean Water Act because their land is located near “any waters of the U.S.” I agree with their concerns. This legislation represents a drastic expansion of the ability of the federal government to regulate water sources, from intermittent streams to prairie potholes. State and local governments and private property owners are concerned, as am I.

After the Clean Water Restoration Act passed out of the Senate Environment and Public Works Committee on a partisan vote, the Environmental Protection Agency released its Clean Water Enforcement Action Plan. This plan concludes that states are not doing their part and that the federal government is not being aggressive enough in its enforcement actions. The EPA found that enforcement is a problem in 39 states and that “enforcement penalty calculation, documentation and collection” is lacking in 45 states. Instead of undertaking a serious initiative with states, the EPA considered a series of “escalation responses”; one option was to withdraw state-delegated authority to enforce Clean Water Act provisions and taking over those responsibilities altogether.

I oppose this plan because its enactment will create far more problems than it solves. There is a better way.

We all share a collective interest and responsibility to protect and improve our environment. That is why I have worked across the aisle for many years to promote bipartisan modifications and improvements to federal water quality protection laws and alternative energy development, as well as water, species and public lands conservation. But I also recognize that collaboration and effective partnerships between the federal government and its state and local partners and private property owners have the greatest potential for success. Inflexible mandates handed down by the federal government do not foster cooperation — they cause resentment.

On the other hand, I have led collaborative efforts between federal, state and local governments and stakeholder organizations to help address these issues by building consensus and working toward collaborative solutions that we can all support. If the federal government is going to get serious about addressing environmental challenges effectively, it must seek to achieve these worthwhile objectives through partnerships with others. It is not only possible — it is necessary. If we work together to craft solutions that work for a broad diversity of interests, we can find success.