| October 9, 2007
The Honorable Nancy Pelosi
Speaker of the U.S. House of Representatives
H-232, U.S. Capitol
Washington, DC 20515
Dear Speaker Pelosi:
A bill is now making its way through the House that would, according to one legal expert, push “the limits of federal power to an extreme not matched by any other law, probably in the history of this
country.”
The bill, the Clean Water Restoration Act (H.R. 2421), is sponsored by Rep. James Oberstar. A
similar bill, S. 1870, has been introduced by Sen. Russell Feingold in the Senate. The Clean Water
Restoration Act seeks ostensibly to restore protections under the Clean Water Act lost due to Supreme
Court decisions in 2001 and 2006 and to clarify which waters would be subject to regulation under the
act.
We’re concerned, however, that the Clean Water Restoration Act would achieve the opposite: It
would expand the scope of the Clean Water Act far beyond its original intent while increasing
confusion over what is and isn’t to be protected. In addition, we believe the bill runs counter to the
principle of accountable government as it seeks to transfer legislative power from elected officials to
those appointed for life.
These shortcomings have significant implications for retirees, families, farmers, ranchers and
owners of small businesses – many of whom have a significant portion of their net worth tied up in
homes, lots or other real estate. With the real estate market already down and foreclosures due to subprime
mortgage problems likely to drive it down further, the last thing that we need is government
regulation that would diminish property values further.
In the 30+ years that the Clean Water Act has been on the books, there’s been considerable
uncertainty over what is subject to federal regulation. As a Government Accountability Office report
notes, “[Army Corps of Engineers]…districts differ in how they interpret and apply the federal
regulations when determining what wetlands and other waters fall within the jurisdiction of the federal
government.”
The absence of clear and consistent standards under the Act has led to abuse.
Floridian Ocie Mills and his son Carey, for example, were convicted of filling a “wetland” after
placing clean fill dirt on mostly dry land. They ended up serving 21 months in prison.
U.S. District Court Judge Roger Vinson later characterized the conviction this way: “This case
presents the disturbing implications of the expansive jurisdiction which has been assumed by the
United States Army Corps of Engineers under the Clean Water Act. In a reversal of terms that is
worthy of Alice in Wonderland, the regulatory hydra which emerged from the Clean Water Act
mandates…that a landowner who places clean fill dirt on a plot of subdivided dry land may be
imprisoned for the statutory felony offense of ‘discharging pollutants into navigable waters of the
United States.’”
Despite Judge Vinson’s statement, Rep. Oberstar has defended this spectacular abuse and
labeled the Millses “polluters,” arguing that “Mill [sic] was a well-known activist in the property rights
movement; testimony in his case revealed that he wanted to challenge the authority of the Clean Water
Act.”
It seems that Representative Oberstar believes that participating in the political process and
challenging overzealous regulators constitutes criminal conduct. This is a rather expansive view of
federal authority, to say the least.
Two U.S. Supreme Court cases, one in 2001 (Solid Waste Agency of Northern Cook County v.
U.S. Army Corps of Engineers) and another in 2006 (Rapanos v. U.S.), have significantly reduced the
potential for abuse under the Clean Water Act.
The Clean Water Act was intended to prevent pollution of “navigable waters” of the U.S. The
Court’s decisions limit the federal government’s previously wide latitude to define “navigable” and
exert federal authority. Isolated, non-navigable waters, for example, are no longer subject to
regulation. Isolated drainage ditches with insignificant, intermittent flows also are no longer subject
to federal authority under the Clean Water Act.
The Clean Water Restoration Act would restore the virtually limitless regulatory power federal
agencies had assumed in contravention of congressional intent.
The bill would give federal agencies authority over “all interstate and intrastate waters,”
including non-navigable waters. As such, it not only seeks authority far beyond the original scope of
the Clean Water Act, but beyond Congress’s constitutional powers, as “non-navigable” waters are
unlikely to fall under the Commerce Clause, the principle enumerated power upon which Congress has
relied for passage of environmental laws. Greater confusion over what waters are and are not subject
to the Act would result, requiring the courts to attempt to sort things out.
The bill would also permit Congress to abdicate its legislative responsibilities. It defines “waters of the United States,” in part, as “all waters… to the fullest extent that these waters, or
activities affecting these waters, are subject to the legislative power of Congress under the
Constitution,” effectively deferring to courts to determine what waters are subject to regulation.
Further, the bill’s reference to “activities affecting these waters” could give federal agencies the
ability to assume expansive authority over not only water, but land and the air, too.
The expansive authority assumed by the federal government under the Clean Water Act has
been poisonous to the rights of American citizens.
As you begin your important work on this issue, we hope you will remember that one does not reduce the harmful effects of poison by increasing the dosage.
Sincerely,
David Ridenour
Vice President
National Center for Public Policy Research
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