We continue to see article after article in
the newspapers touting the party line that HR 2421, the so-called Clean Water
Restoration Act of 2007, just gives authority back to federal
regulators that the Supreme Court took away in SWANCC (2001)
and Rapanos (2006), and that the bill simply codifies statutorily the existing
federal regulations defining Clean Water Act jurisdiction. But nothing
could be further from the truth.
Contrary to the self-serving claims of the bill's sponsors that the Corps and EPA have had a consistent interpretation of the scope of federal Clean Water Act authority for more than 30 years that covers ALL waters in the United States, these agencies have NEVER had a consistent understanding of their jurisdiction. When the Federal Water Pollution Control Act (later amended by the Clean Water Act) was passed in 1972, the Corps claimed the Act only covered navigable-in-fact waters and certain abutting wetlands. That didn't change until a court held the agency's interpretation was too narrow and the agency adopted broad regulations in effect today which extended federal jurisdiction to "tributaries" to navigable waters and certain "adjacent" wetlands. But even then, the Corps did not interpret "tributaries" to mean anywhere water flows or could flow, as it does today, and the agency expressly disclaimed any authority over drainage ditches which it now regulates. The notion that the Clean Water Act covers ALL waters in the United States did not come to the fore until after the Supreme Court held in Riverside Bayview (1985) that the Corps could regulate wetlands abutting navigable-in-fact waters under its regulations. The Corps took that decision as carte blanche and started, incrementally, to extend its authority over more and more intrastate waters. In 1986, the Corps adopted, without public comment, its Migratory Bird Rule that authorized federal regulation of all waters (including any wetlands) that could be used by passing migratory birds.
In its 2001 SWANCC decision the Supreme Court castigated the agency for its ever changing jurisdictional interpretations and held the Corps had misinterpreted Riverside Bayview. According to the court, Riverside Bayview did not authorize the agency to regulate ALL waters in the United States without regard to their connection to navigable-in-fact waters. The High Court said the language of the Act and the intent of Congress was clear: by its terms, the Act prohibits discharges to "navigable waters" and that term could not mean all nonnavigable waters. Accordingly, the court ruled the Clean Water Act did not apply to isolated ponds. But contrary to the Corps' expansive reading of Riverside Bayview, the Corps interpreted SWANCC narrowly, as merely invalidating the Migratory Bird rule while still asserting jurisdiction over most isolated water bodies including nonnavigable ponds and wetlands.
In 2004, the GAO reported the Corps was unable to apply any consistent interpretation of its Clean Water Act jurisdiction and observed with dismay that any three officials from a Corps district office would give three different jurisdictional interpretations. It was precisely because no one could say with certainty what the Clean Water Act covered that the Pacific Legal Foundation petitioned the Rapanos case to the Supreme Court. Although that case created its own conflict as to Clean Water Act jurisdiction, a clear majority determined the Corps was not authorized (statutorily, and presumably constitutionally) to regulate ALL waters in the United States.
The claim that the Corps and EPA have clearly and consistently asserted Clean Water Act jurisdiction over ALL waters in the United States for over 30 years is patently false. The Oberstar bill, which covers "all interstate and intrastate waters," is not a Clean Water Restoration Act but a Federal Power Extension Act.
Even the claim that the bill just codifies in statute the existing federal regulations is false. The existing regulations expressly exclude from federal control those wetlands "adjacent to other wetlands." But the Oberstar bill allows federal regulation of all wetlands. Contrary to the text of the existing federal regulations, the bill would federalize ALL waters in the United States and much of the land affecting those waters.
This brings us to another claim, which we often see in the media, which is equally false--that if this bill does not pass, 20% of the nations waters will go "unprotected." What is always left unsaid, and which debunks this claim, is the fact that the States can and do regulate the discharge of pollutants into intrastate waters (including wetlands) without the need for federal authorization or approval. The notion that the States will allow pell-mell pollution of state waters in the absence of broader federal regulation is nonsense.