Uncle Sam’s Land Grab: Does the Clean Water Restoration Act Only Return What the Supreme Court Took? Print
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Wednesday, 06 August 2008 02:06

Reader #697 In title and in summary, the Clean Water Restoration Act sounds benign enough.

But Dan Parmeter, executive director of the Minnesota-based American Property Coalition, calls it "the biggest federal power grab probably in the history of the country."

Its summary by the Congressional Research Service notes that it "replace[s] the term ‘navigable waters' ... with the term ‘waters of the United States' ... ." The ostensible aim is to restore to the federal government authority under the Clean Water Act that the Supreme Court took away with narrow readings of the legislation in 2001 and 2006.

Yet land-rights advocates believe the bill is much more insidious. "It's really a wolf in sheep's clothing," Parmeter said last month. "It's a national land-use-control bill. And if Mr. [James] Oberstar [the House sponsor] and other members of the committee want a national land-use-control bill, then explain it as a national land-use-control bill and let's have a debate ... . Don't try to mask it under the guise of the Clean Water Act."

And Chuck Cushman, executive director and co-founder of the American Land Rights Association (based in Washington state), said: "It's really a watershed-control bill. It will control watersheds, and if you control watersheds, then you control the land."

For supporters, the Clean Water Restoration Act is about clean water, and who doesn't want that? For some opponents, it's about unchecked federal power, and they have horror stories.

Yet it's also possible that the controversy surrounding the legislation is merely a misunderstanding.

Passage of the bill isn't imminent - it hasn't made it out of committee in either the House or the Senate - but this is an issue that's going to be around. Environmentalists want badly to take back some of the territory eroded by the Supreme Court and the Bush administration over the past seven years. If the bill doesn't pass this year, it's almost certain to come back next year.

The question is whether their efforts go far beyond their stated goals.


Clear as Mud

The Clean Water Act has been undoubtedly successful at improving water quality in the United States.

As one 2006 House committee report summarized: "In 1972, only one-third of the nation's waters met water-quality goals. Today, two-thirds of those waters meet water quality goals."

The 1972 law gave the federal government the authority to regulate discharges into "navigable waters," which it defined as "the waters of the United States, including the territorial seas." Read broadly, this gave the Environmental Protection Agency (EPA) and the Army Corps of Engineers a great deal of control. What exactly are "the waters of the United States"? Federal agencies concluded that the phrase meant wetlands as well as "isolated waters," and not just lakes and rivers that could be navigated.

The U.S. Supreme Court made a narrower reading of "navigable waters" in 2001's Solid Waste Agency of Northern Cook County v. Army Corps of Engineers, known as the SWANCC decision, and in a 2006 case known as Rapanos. After those two decisions, navigable waters were protected under the Clean Water Act, with other waters - which agencies had previously included - protected only after passing a test proposed by Justice Anthony Kennedy. The EPA's current guidelines on protected waters can be found at (http://www.epa.gov/wetlands/guidance/CWAwaters.html).

Clean-water advocates say the Supreme Court misread Congress' original legislative intent and muddied the regulatory environment.

Christy Leavitt, federal clean-water advocate for Environment Iowa, said the effect of the decisions and subsequent administrative action was a significant loss of protection. "Most Americans assume that the Clean Water Act protects all of our nation's waters," she said. "Waterways that have been covered by the Clean Water Act for years are now threatened by unlimited pollution, unchecked development, and even destruction. The waters most at risk are [source] streams and wetlands."

The gist of the proposed Clean Water Restoration Act is to eliminate jurisdictional questions about the law. It explicitly grants authority to the EPA and the Corps over "all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing, to the fullest extent that these waters, or activities affecting these waters, are subject to the legislative power of Congress under the Constitution."

Some people have wondered, only jokingly , whether the bill would give the Corps the right to regulate discharges into puddles. (Proponents of the bill say the answer is "no.")

The current legislation was introduced last year in both the U.S. House (H.R. 2421) and Senate (S. 1870) with wide support, mostly from Democrats. The House version, sponsored by James Oberstar (D-Minnesota), has 176 co-sponsors, including Bruce Braley (a Democrat who represents the Iowa Quad Cities) and 10 Republicans. The Senate version, sponsored by Russ Feingold (D-Wisconsin), has 20 co-sponsors, including Dick Durbin (a Democrat who represents Illinois), but no Republican has signed on.


In Your Backyard

Even if it merely expanded authority to pre-2001 levels, the Clean Water Restoration Act would certainly engender opposition.

But the land-rights argument doesn't come from big business that stands to profit from less federal protection of waters following the Supreme Court decisions in 2001 and 2006. Land-rights advocates worry that the EPA and the Corps will be given unprecedented control over citizens' lives.

The key phrase says that the Clean Water Restoration Act gives federal agencies control over waters of the United States and "activities affecting these waters."

"That pretty much includes any kind of significant human activity," Parmeter said. "I think the Clean Water Restoration Act as-is goes way beyond - way beyond - what was ever intended by the Clean Water Act of 1972. It basically gets at controlling nonpoint source pollution."

"Unlike pollution from industrial and sewage treatment plants," says the EPA, nonpoint source pollution "comes from many diffuse sources," such as runoff from land and streets. This can include everything from fertilizer and chemicals from agricultural lands to "urban runoff" such as oil, grease, and toxic chemicals to sediment to bacteria.

"That deserves a national debate by itself," Parmeter said of nonpoint source pollution. "It's just kind of buried" in the legislation.

The fear is that the bill would put virtually all land in the U.S. under EPA and Corps control.

"This is a massive regulatory bill," Cushman said. "You're going to have the Corps of Engineers in your backyard. I don't know if we want the Corps of Engineers in charge of our lives. It's my guess we don't. There are so many horror stories associated with the Corps."

Yet supporters of the bill are adamant that the legislation would not regulate nonpoint source pollution.

The 2006 report prepared by Democratic staff of the Committee on Transportation & Infrastructure emphasizes that the "Clean Water Authority Restoration Act [a 2005 bill that is substantially similar to the current legislation] restores Clean Water Act authority - it does not expand that authority."

Yet the document - titled "Waives, Loopholes, & Rollbacks: The Republican Contract on Clean Water" - also discusses nonpoint source pollution and makes a strong argument in favor of addressing the problem: "Over the past 30 years, the modern Clean Water Act has made great advances in improving the quality of U.S. waters and controlling various sources of pollution, with one large exception - nonpoint sources - the unfinished agenda of the Clean Water Act. "

Still, proponents of the bill claim that nonpoint source pollution is not part of the Clean Water Restoration Act. A position paper from seven environmental groups, including the Sierra Club, the National Resources Defense Council, Audubon, and American Rivers, says: "The legislation would restore the regulatory status quo prior to the SWANCC and Rapanos rulings; it does not create ‘new' Clean Water Act requirements."

Leavitt explained that the phrase "activities affecting these waters" simply refers to point-source/discharge activities already covered by the Clean Water Act; the bill would only change a definition, and it certainly doesn't provide any regulatory framework for nonpoint source pollution.

"What the Clean Water Act does is it requires people to get a permit if you are going to discharge into a waterway," she said, "and it requires people or businesses to get a permit if they're going to do dredge and fill activities ... . Those are the sort of ‘activities'" the Clean Water Restoration Act would impact, she said. "All that the bill does is get us back to where we were prior to the 2001 Supreme Court case."

Christina Mulka, a spokesperson for Durbin, echoed that the goal of the bill is only to return the Clean Water Act to its pre-2001 authority. She added that the senator was familiar with the objections of land-rights advocates and that "you can't subject property owners to unnecessary regulation like that."

Nicole Buseman, Braley's press secretary, outlined his reasons for supporting the bill via e-mail but did not answer two questions related to concerns from the land-rights camp. "At last report, nearly one in 10 Iowans receive poor-quality drinking water, and over 25 percent of Iowa's rivers and lakes are impaired for fishing and hunting," she wrote. "Congressman Braley is working to ensure that all Iowans have access to safe drinking water and clean water for hunting and fishing, and the Clean Water Restoration Act works towards these goals."

Leavitt noted that comments on the bill have been submitted, and that amendments might clear up any confusion about the legislation's scope.

Parmeter said he'd like to see Congress do nothing, preferring to see what the next presidential administration does from a rules and enforcement perspective. "I just don't think that bill is fixable as it is," he said.

But he admitted that Congress will one day revisit the issue, and he added that he personally supports a watershed approach - but one that is not dictated by the federal government.

"Ultimately, there's going to be an amendment to the Clean Water Act," he said.

The issue is whether it merely restores what was taken or becomes something bigger than that law's architects ever envisioned more than 30 years ago.


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