Election-year Congresses are famously inactive, but sometimes they produce very dangerous legislation with the most innocuous names — like the “Clean Water Restoration Act of 2007.” Who doesn’t love clean water — and what politician could oppose it? But most Americans would not love having the occasional mud puddle on their property become subject to federal regulation, or to be sued for fertilizing their garden. This is the sort of thing Congress can do when you’re not watching, and they are poised to do it now.
Congress passed the Clean Water Act (CWA) in 1972 to stop the industrial pollution of streams and rivers. The CWA set criminal penalties for polluters, and largely ended the practice. It regulates pollution in “navigable waters” and adjacent wetlands. It was left to state and local governments to regulate non-navigable and intrastate waters, which they do with varying levels of common sense.
Over time, however, the Environmental Protection Agency has extended its reach beyond anything reasonably considered “navigable” or “interstate.” A 2004 report by the Government Accountability Office noted the lack of consistency in determining which waters fall under the act. It took the Supreme Court’s 2006 decision on the Rapanos and Carabell cases to end the worst abuses. While those cases established that the presence of an occasionally wet ditch on a piece of land does not automatically deprive a landowner of his rights, they did not completely clarify CWA’s already ambiguous scope.
Conservatives welcomed the decisions as a return to sanity. “Prior to the court decisions, they were trying to assert that navigable waters were basically any waters,” said Sen. Jim Inhofe (R., Okla.), ranking minority member of the Senate Committee on the Environment and Public Works and a longtime EPA critic.
But environmentalists considered this loss of federal power a travesty, and Rep. Jim Oberstar (D., Minn.) has come to their aid with the Clean Water Restoration Act (H.R. 2421). Oberstar’s bill would undo the court’s more reasonable guidelines and jeopardize landowners’ rights in a new round of environmental litigation.
Oberstar is now inviting suggestions to improve the bill, since some House Democrats worry about its effect on their districts. They should worry. Its main provisions might someday force homeowners to get a federal permit to spray their lawn for weeds. They should be especially worried if there are any ditches, dry creek beds, or low-lying areas nearby that occasionally gather standing water.
It isn’t just landowners who stand to lose– city governments could be sued and stopped from spraying for West Nile Virus during mosquito season. County and state governments attempting to build roads — or to repair roads washed out by storms — could be forced to go through a multi-year permitting process from the EPA and the Army Corps of Engineers, if the work affects roadside ditches that occasionally hold rainwater.
Would the federal government be so unreasonable as to press the issue in such cases? It doesn’t matter. The National Environmental Protection Act (NEPA) gives almost anyone the legal standing to sue for CWA violations. Well-funded environmentalist groups are happy to do it, and the costs of defending such suits can be prohibitive for landowners and local governments.
Oberstar has argued that his bill makes only minor technical changes to CWA. His 62-page report on his own bill, however, gives a different impression. This sharply partisan document, released just before the 2006 election, is heavy on anti-Republicans screeds — and also contains revealing policy notes on Oberstar’s plans for a dramatic expansion of federal power. It describes a regime of new federal authority to suppress diffuse sources of pollution, mostly caused by landowners. It calls this so-called non-sourcepoint pollution “the unfinished agenda of the CWA” — a good indication that the CWA originally created no such role for the feds.
Oberstar’s bill removes the word “navigable” from the CWA and introduces “all intrastate waters” to the scope of federal jurisdiction. This would cover myriad bodies of water, ditches, and soggy meadows that have never been under federal control.
And importantly, the Clean Water Restoration Act applies federal jurisdiction “to the fullest extent that these waters, or activities affecting these waters, are subject to the legislative power of Congress under the Constitution.” This catch-all clause will force the court to interpret the statute as broadly as possible. And the language about “activities affecting these waters” is a novelty that could place a variety of land-use issues under federal jurisdiction if they are deemed to create “non-sourcepoint pollution.” This is no mere policy “correction.”
David Brand, a county engineer representing the National Association of Counties, testified at a Senate hearing earlier this month that local governments could be hamstrung in activities as simple as clearing clogged drainage ditches. “Counties are responsible for a number of man-made ditches, such as culverts, storm channels and road-side ditches,” said Brand. “There could be a limitless possibility of future federal permits required to do things such as construct a new driveway or simply cross a swale on an individual’s property.”
The bill’s future remains uncertain in the Senate Environment and Public Works Committee, said Sen. Inhofe. He expressed hope that Sen. Max Baucus (D., Mont.) would see problems with the bill, and noted that Sen. John Warner (R., Va.) has remained silent. A markup is expected in Oberstar’s transportation committee in the House early next month.
Aside from its potential negative consequences for landowners and governments, the question no one asks is whether such an augmentation of federal power is constructive. The Clean Water Act’s criminal penalties remain the same as they were when the bill was written to target industrial polluters. After all of the judicial progress in defining the Clean Water Act to a reasonable size, it would be a shame to see Congress afflict local governments with a new layer of bureaucracy, and possibly turn thousands of landowners into environmental criminals.
– David Freddoso is an NRO staff reporter.