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Hearing on "Restoring" the Clean Water Act:

Today the House Transportation and Infrastructure Committee will hold a hearing on the "Clean Water Restoration Act of 2007," a bill to expand the jurisdictional scope of the Clean Water Act by removing any reference to the navigability of waters. Specifically, the bill replaces references to "navigable waters of the United States" with "waters of the United States" so as to assert federal authority over all interstate and intrastate waters and wetlands in the nation. In effect, the aim of the legislation is to overturn the Supreme Court's SWANCC and Rapanos decisions.

I was among those asked to testify on the bill. My testimony is available here. I make three basic points. First, the bill does not "restore" the Clean Water Act, as it could extend to many waters and lands never subject to regulation under the original act. Second, the bill will fail to achieve its stated goal of increasing regulatory certainty, as its vagueness and broad language will spur substantial litigation and controversy as courts struggle to determine the scope of federal authority. And finally, that the bill will not do much to advance environmental protection because it does nothing to focus limited federal regulatory and enforcement resources where they can do the most good.

I hope to post more after the hearing.

Fearless:
Your third point is nonsense.

While the bill does not require federal resources to be focused where they will do the most good, it does allow them to be so focused.

Your second point is ineffective.

Just about any change in any law will bring about substantial litigation. I suppose we could have "certainty" if we never changed the law about anything, ever.

This critique is rather useless.

Your first point is of a rhetorical nature, and totally lacking in substance.
4.16.2008 10:24am
SeaDrive:
I'm not an attorney, nor do I have any special knowledge in this area, but I always thought the restriction to "navigable" water was to support the right the Federal Government to legislate for rivers and streams. I'm a big supporter of clean water, but even the original legislation was problematic from a states rights point of view.

I know that courts have held seasonal damp mud to be a navigable water in at least a case or two.
4.16.2008 10:32am
bittern (mail):
Au contraire. I like it.

1. Nice work. And
2. Thank you for doing it.

Nitpick: In the next version, the following statement needs a footnote, or maybe a whole book:


Other programs under which the federal government enters into private agreements with landowners to restore wetlands on their property, while subsidizing the cost of restoration and the purchase of a permanent or multi-year easement to ensure that the wetland is protected, are particularly cost-effective when compared to mandated mitigation under the CWA.
4.16.2008 10:39am
cjwynes (mail):
What part of the constitution grants the federal government power to regulate pools of standing water on my property?

At least "navigable waters" has some legitimate connection to commerce between the states. If gov't really feels the need to tell people what they can and cannot do with mosquito-infested swamplands or even tiny catfish ponds, this sounds like a job for state or local agencies.
4.16.2008 10:42am
ithaqua (mail):
"Specifically, the bill replaces references to "navigable waters of the United States" with "waters of the United States" so as to assert federal authority over all interstate and intrastate waters and wetlands in the nation."

If anyone, in the future, doubts me when I claim that the ultimate aim of the environmental cultists is absolute government control over private property, I'll just point them to this post.

It's like they're not even trying to hide it anymore :)
4.16.2008 10:47am
DaSarge (mail):
So, if I read Rapanos right, I don't see where the Feds have constitutional jurisdiction that is so broad. The rational in Rapanos was clearly based upon the notion that the Feds did not have jurisdiction over non-navigable waters and the Clean Water Act should not be read to mean the Act asserts power the Feds do not have.

Under the Constitution, the "waters of the United States" are co-extensive with the "navigable waters of the United States" and not broader. It is a distinction without a differance. If the statute is passed, dollars to donuts SCOTUS says there is no jurisdiction.

Is it possible for the Feds to just butt out and let the States handle their own affairs -- just this once?
4.16.2008 10:53am
Temp Guest (mail):
Sounds like the new act, as written, gives federal regulators broad control over anything that might come in contact with water.

It will be interesting to see how long it takes an activist judge to extend such control to anything coming in contact with vapor from "the waters of the United States". And to observe the litigation that will result from regulatory attempts to define water vapor, e.g., "a predetermined and definable atmospheric locus within which the molar weight of water molecules (exclusive of those dissassociated into oxy- and hydroxy- ions) constitutes 5% or more of the total molar weight of atmosphere within the locus..." .
4.16.2008 11:15am
bittern (mail):
DaSarge, lacking sufficient education, I can't evaluate your implication that past court interpretations of "waters of the United States" are robust and won't be pulled down by new legislation as many people here seem to be concerned. Please throw in something more lawyerly than "dollars to donuts."

Ithaqua, water moves around slower than air, so extensive federal water regulation makes less sense than extensive federal air rules. Seems to me. Work with us, hey?
4.16.2008 12:00pm
therut:
I'm going outside to make a mud hole for my children to play in while they are still free to do so. Wonder if they will check out my dog's water pan????
4.16.2008 12:39pm
Francis (mail):
If Raich is good law, then so is this. Impacts to wetlands have far more aggregate impact on the environment than a few dopers do to the Controlled Substances Act.

Here in California, many developers prefer an expansive interpretation of Corps jurisdiction. It allows them to go through the Endangered Species Act section 7 biological opinion process instead of the section 10 incidental take permit process.
4.16.2008 1:39pm
bittern (mail):
therut, all ur h20 r belong 2 us. How long you planning to hold onto that water anyway, forever? Share it, my friend.
4.16.2008 1:40pm
davod (mail):
"Here in California, many developers prefer an expansive interpretation of Corps jurisdiction. It allows them to go through the Endangered Species Act section 7 biological opinion process instead of the section 10 incidental take permit process."

You have just hit on the problem. To much regulation.
4.16.2008 4:31pm
pireader (mail):
Professor Adler --

Your testimony raises three issues.

First, you complain that HR 2421's language reaches further than the 1972 "Clean Water Act". In reality, opinions about that Act's scope vary. The EPA and Corps of Engineers have interpreted it broadly; you, more narrowly. The Supreme Court has endorsed your interpretation; but the proposed legislation would write the EPA/Corps' broader interpretation into law. Isn't that what a legislature should do, when the judiciary interprets its statutes in ways it disfavors?

Second, you seem to question the limits of Congress'authority to legislate on "clean water". Evidently, the 1972 Act tried to rest itself on Congress' traditional authority over "navigable waters"--itself a 19th century gloss on the Commerce Clause. The new legislation cuts itself loose from that support. Do you have a formulated view of how far Congress' authority in this area extends? And how it compares to Congress' authority over air pollution, etc.

Third, you claim that "the bill will not do much to advance environmental protection because it does nothing to focus limited federal regulatory and enforcement resources where they can do the most good." Are you somehow claiming that legislation can only help the environment if it focuses limited resources? Because it seems equally likely that a broad mandate can improve regulatory performance by ending quibbles over jurisdictional boundaries.
4.16.2008 5:49pm