The Truth About The Oberstar Bill
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.
