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| 9/29/2009 9:22:00 AM | Email this article • Print this article |
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| Sen. Russ Feingold |
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Feingold's clean water bill swims into strong currents of opposition
Critics say bill is unconstitutional expansion of federal power
U.S. Sen. Russ Feingold (D-Wisconsin) has introduced and is promoting a Clean Water Restoration Act, legislation he says will re-establish federal protections for wetlands that were undermined by recent Supreme Court decisions, but his critics say the proposal represents an unprecedented expansion of federal regulatory power.
To Feingold, the bill would restore the intent of the 1972 Clean Water Act, which gave the federal government jurisdiction to regulate and protect the navigable waters of the United States, including connected water bodies and adjacent wetlands.
Two Supreme Court decisions narrowed the scope of what water bodies could be regulated under the Act, however. Feingold proposes fixing that by removing the word 'navigable' from the Clean Water Act, thereby giving the federal government jurisdiction over all waters of the United States.
That's problematic for critics who say the Supreme Court decisions merely prevented the federal government from increasingly regulating nonnavigable waters - which Congress never intended it to do. Slowly through the years, these critics say, the Environmental Protection Agency and the U.S. Army Corps of Engineers began to overstep their authority, which the courts properly struck down.
What's more, these critics say, Feingold's bill is constitutionally questionable because only states have the right to regulate their waters, while the United States is limited in jurisdiction to navigable waters by the interstate commerce clause of the constitution.
Most troubling of all, they say, Feingold's legislation would allow the federal government to regulate far more than it ever did even before the Supreme Court decisions, giving it authority over everything from small drainage ditches to agricultural ponds on private lands.
The federal government would control all the water, in other words.
Trying to temper critics, the Senate Environment and Public Works Committee adopted, on a 12-7 vote, a compromise version of Feingold's bill in June, which the senator endorsed.
The compromise both removed and added language specifying that the intent of the legislation was to return to the pre-Supreme Court rulings' scope of jurisdiction, but that did not mollify critics, who pointed out the language still gives the federal government jurisdiction over all the waters of the United States, regardless of the stated intent.
"The superficial changes made to this bill don't change its underlying intention and ultimate effect: to radically expand federal power over farms, ranches, and private property," said Sen. James Inhofe, the ranking Republican member on the committee. "We heard plenty of talk about a grand compromise to address concerns from rural America. Yet in the end, the revised bill, which passed on a party-line vote, still lacks support from a large swath of rural stakeholders. . . . The Democrats are moving a bill that amounts to the biggest bureaucratic power grab in a generation - and it's directed right at America's heartland."
Feingold: Standing up for wetlands
In Feingold's view, he is not leading a federal power grab but is merely promoting good stewardship, and returning to a bygone era when government actively protected water quality and wetlands.
"As you may know, for over 35 years the Clean Water Act has sought to improve the quality of our nation's waters to provide for drinking water, wildlife habitat, and recreational, industrial and agricultural opportunities," he wrote this past July. "It is the primary law that regulates the discharge of pollution into our waters."
Since its enactment in 1972, Feingold said, great progress has been made in reducing that pollution, but the two Supreme Court decisions imperiled the progress that had been made.
In Solid Waste Agency of North Cook County (SWANCC) in 2001, the High Court ruled that waters with no connection to interstate commerce, except as a resting place for migratory birds, did not fall within the scope of the CWA, while in Rapanos in 2006, justices determined that navigable waters did not include dry channels or intermittent streams.
"The SWANCC and Rapanos decisions have put nearly 20 million acres of wetlands and nearly 60 percent of our stream miles in the lower 48 states - the drinking water sources for 110 million Americans - at risk of becoming polluted or wiped out altogether," Feingold wrote. "The decisions have also led to significant confusion, permitting delays and increased costs caused by uncertainty about which waters remain protected after the court decisions."
He said his legislation would reaffirm the original intent of Congress as well as longstanding Environmental Protection Agency and U.S. Army Corps of Engineers regulations that would enable the government to protect critical wetlands and streams.
"This legislation is critical to ensure that all our country's waters - waters that are necessary for drinking, swimming, fishing, wildlife habitat, and a host of other uses - are safe and healthy," he wrote. "It would restore critical clean water protections that existed for over 30 years, prior to the Supreme Court decisions."
Many environmental and conservation groups, such as the League of Conservation Voters and Ducks Unlimited, support the legislation.
WAC: Not true
Feingold's claims about his legislation just aren't accurate, according to the Waters Advocacy Coalition, a diverse group composed of various industry and trade groups, such as the National Association of Realtors and the National Association of Manufacturers but also such entities as state departments of agriculture and the National Council of Farmers Cooperatives.
In reality, the group says, Feingold's legislation does not restore the Clean Water Act's scope of authority but radically expands it.
By deleting the term 'navigable' from the Act - which appears in the current law more than 80 times - the bill would require federal regulation of virtually all wet areas, including ditches, culverts, and many treatment ponds, the group contends.
(Others, such as L. Paul Goeringer and Rusty W. Rumley of the National Agricultural Law Center of the University of Arkansas, say the language could extend federal jurisdiction to farm ponds, storm water retention basins, roadside ditches, desert washes, streets and gutters, and "even to a puddle of rainwater.")
The WAC's critique this year is the same as it was last year when its representative, attorney Virginia Albrecht, testified before a senate panel in April 2008 on a similar proposal in that congressional session.
Simply put, she told lawmakers, the legislation would have serious unintended consequences.
"While proponents of the CWRA contend that the proposal seeks only to restore federal authority taken away by the Supreme Court, a fair reading of the plain text of the CWRA simply does not support that contention," Albrecht said. "Altering the Act's definitional structure could have dire and unintended consequences by imposing further regulatory burdens on states and local communities, usurping state authorities to manage vital water resources, including groundwater, and imposing substantial costs and delays in the replacement of aging water infrastructure."
While there was no question that the CWA has been successful in improving and maintaining the quality of the nation's water, she said, the Act had balanced federal and state interests in doing so, and had explicitly sustained the state's power to regulate water quality.
"It is essential to recognize the critical importance of the states in this process," she said. "Much of the burden for overseeing the CWA's requirements is shouldered by the states, who are on the front line of monitoring, assessing, and protecting the health of our nation's waters."
Cooperative federalism
The federal government works with the states through a concept known as cooperative federalism, Albrecht said, which she called the architectural underpinning of the CWA.
"Cooperative federalism is a simple yet complex principle," she said. "It is simple in that it recognizes the independent authorities that the federal government and states can bring to bear in a coordinated fashion. It is complex in that it requires a careful balancing of interests and can be easily upset through either overreaching by the federal government or abdication of responsibility by the state."
In crafting the Clean Water Act, Albrecht continued, Congress understood that it derived its regulatory power from the constitution's Commerce Clause, while the states' authority was derived from their broader police powers, which, she said, included the power to regulate land and water use in the interests of public health, safety, and welfare.
"Congress recognized this important distinction in declaring the CWA's goals and policies," she said. "Specifically, the Act provides that '[i]t is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the Administrator in the exercise of his authority under this chapter.'"
Pursuant to that policy, she said, Congress charged the states - not the federal government - to adopt water quality standards, identify impaired waters, and develop programs to redress their impairment, including pollution from non-point sources not subject to federal regulation under the CWA.
"Such decisions remain the exclusive and proper province of the states," Albrecht testified. "Congress's judgment in 1972 to limit its authority to 'navigable waters' (defined as 'the waters of the United States') reflects the fact that Congress understood that some waters are federal and some are not, and that the nation's water resources are best protected by building on the separate yet complementary roles of state and federal governments. The Act's division of labor between state and federal regulation has served the nation well for more than 35 years."
By deleting the term 'navigable,' Albrecht said, the CWRA would effectively destroy the CWA's careful calibration of federal and state authority and would replace it with overriding federal regulation over virtually every water body in the nation.
Indeed, according to the language of the bill, the federal government would now regulate all the waters of the United States, including 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, steams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing.
Under such an expansive definition, Albrecht said, the federal government could regulate any or all waters found within a state, no matter how small or seemingly unconnected to a federal interest.
"Under this apparently boundless concept, the federal government could rightly regulate storm sewers, drainages, and roadside ditches and activities related thereto," she said. "To date, the federal government has generally refrained from exercising such expansive jurisdiction under the CWA, reasonably interpreting such geographic features and waters as the dominion of state and local officials. Construction and maintenance of ditches in the United States historically have been a basic function of local and state governments-to control drainage, irrigate crops, and provide flood control, among other things."
While a so-called compromise was reached in the most recent version of the bill - some new exemptions were included - the WAC has called the compromise window dressing and remains opposed because the the bill continues to delete the term 'navigable.'
"Any amendment which retains the basic premise of S. 787 by deleting the term 'navigable' from the Act, then adding a few exemptions is an unacceptable starting point for legislative compromise," the group wrote in a letter this June to lawmakers. "The exemptions that would be required would by no means rein in the extraordinary expansion of federal jurisdiction that would occur once this fundamental alteration is made in the law."
New momentum
The bill has been introduced in four previous sessions of Congress but has stalled in the face of opposition, not only from Republicans but from rural Democrats.
However, a more liberal Congress this year and support from President Barack Obama has given supporters of the legislation new momentum.
"The Obama Administration has provided a clear call for legislation to ensure that the Clean Water Act continues to be an effective tool to keep America's waters clean and our families healthy," Sen. Barbara Boxer (D-California), the chairwoman of the Senate Environment and Public Works Committee, said earlier this year. "I look forward to working closely with the administration and my colleagues in the Senate to enact legislation that protects rivers, lakes and wetlands and keeps Americans' drinking water safe while providing the clear guidance that farmers, businesses, federal agencies, and state and local governments need."
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Reader Comments
Posted: Tuesday, September 29, 2009
Article comment by:
tmullins
Appalachia is being bombed, blasted and bulldozed right into 3rd world America. We must keep the clean water protection act in place and make Halliburton stop polluting our water !!!
http:www.wisecountyissues.com/?p=138
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