Commissioner's view: Clean water bill ends local control

Duluth News Tribune (Minnesota)

By Dennis Fink May 4, 2010

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.

http://www.duluthnewstribune.com/event/article/id/167714/group/Opinion/

Editorial: Muddy waters

Free Lance-Star (Fredericksburg, VA)

May 4, 2010

Uncle Sam looking over your farm pond? Is that a good idea?

GIVEN A CHOICE between clean water and limited government, which should Americans pick? Both here's why and how.

Back in the early days of the environmental movement, Congress under President Nixon passed the Clean Water Act, giving the Environmental Protection Agency responsibility for cleaning up and protecting the nation's navigable waterways.

Why "navigable"? Because navigable waters are ones over which commerce and trade occur, and Article I Section 8 of the Constitution gives Congress the power to "regulate Commerce among the several States ." Congress, in passing the Clean Water Act in 1972, recognized both this federal responsibility and the limits placed on Uncle Sam by the "enumerated powers" principle of constitutional law.

In the decades that followed the act's passage, the Army Corps of Engineers, working with the EPA on pollution issues, began routinely claiming jurisdiction over wetlands abutting navigable waterways. In 1986, the Corps expanded its oversight to any body of water upon which a migratory bird could land.

This overreach prompted a correction. Two Supreme Court decisions did just that. In a 2001 case, SWANCC vs. Army Corps of Engineers, the court said the Corps had no standing to enforce its migratory bird rule. And in Rapanos v. the U.S. Government in 2006, the court found the abutted wetlands rule to be unsupported by the law.

Displeased with both decisions, 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.

Ranchers are particularly riled. Dave Scott, president of the Texas and Southwestern Cattle Raisers Association, says, "Federal jurisdiction would be brought all the way to the ranch, creating more bureaucratic government red tape, as well as expensive and unnecessary engineering and possibly even litigation." Groundwater, Mr. Scott notes, is not excluded from the bill, leaving that resource open to federal control, too.

Clean water is a great boon. Those of us who live near and love the Chesapeake Bay understand that well. But we also know that expanding the powers of Washington beyond those enumerated in the Constitution is an expensive and dangerous "fix" to any problem.

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.

http://fredericksburg.com/News/FLS/2010/052010/05042010/544151  

 

Water grab hurts jobs

Othello Outlook (Washington)

By U.S. Representative Doc Hastings

May 03, 2010

Central Washingtonians know clean, available water is vitally important to our economy and our region. Whether it’s to maintain the health of the Columbia River, keep the irrigation flowing to our farms or just to pipe into our homes for daily use, clean water is truly the economic lifeblood of central Washington.

Recently, a House Democrat Committee Chairman proposed legislation to dramatically expand the scope of the Clean Water Act, bringing almost every body of water — from irrigation canals, to small ponds, to seasonal mud-puddles — under the unlimited jurisdiction of the federal government.

When Congress passed the Clean Water Act in 1972, the intent was clear: The federal government, working with the states, should ensure that our water quality is protected for future generations. Although this is a laudable goal, over time, the Clean Water Act has been the subject of much abuse by those who would use it for their own special interests, including the suppression of private property rights and economic development.

Thankfully, the Supreme Court has ruled the federal government can only regulate “navigable waters.” These rulings make it clear states control and regulate waters within their boundaries and it acknowledges local governments are fully capable of ensuring the protection of the environment while respecting private property rights.

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, just like with health care and banks, 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.

http://othellooutlook.com/?p=10584