The proposed Clean Water Restoration Act (CWRA) now under consideration in Congress, is "patently unconstitutional" and would "push the limits of federal power to an extreme not matched by any other law, probably in the history of this country."
So argues Pacific Legal Foundation Principal Attorney Reed Hopper. Hopper was the successful lead attorney at the U.S. Supreme Court in the landmark 2006 Clean Water Act case, Rapanosv. United States, which reined in overbroad federal regulation under the Clean Water Act.
Currently the Federal Clean Water Act applies to "navigable waters." The proposed Clean Water Restoration Act would remove the phrase "navigable waters" and replace it with the broader phrase "waters of the United States." "This change would expand the reach of federal land use regulation to an unlimited extent, subjecting every pond, puddle, and ditch to control from Washington, D.C.," said Hopper.
PLF’s Hopper refutes supporters’ "false claims" about CWRA
In response to what he calls "this breathtaking scheme for limitless federal land-use control," Reed Hopper has issued a list of "False Claims" about the legislation.
"The ‘Clean Water Restoration Act’ is misleadingly named; it’s a wolf in sheep’s clothing," said Hopper. "Contrary to its supporters’ claims, it wouldn’t ‘restore’ federal authority that was stripped away by court decisions. Rather, it would push federal power to new, unprecedented and unconstitutional extremes," said Hopper.
Hopper lists the top five "false claims" as follows:
False Claims About the Clean Water Restoration Act
(H.R. 2421, S. 787)
Claim 1: For over 30 years, the Army Corps of Engineers and Environmental Protection Agency have consistently interpreted the Clean Water Act to cover all waters in the United States.
Truth: The Corps and EPA have never claimed that the Clean Water Act authorized federal regulation of all waters in the United States. Federal regulations specifically exempt some waters from federal control, including certain wetlands.
Claim 2: It has always been Congress’ intent to regulate all waters in the United States through the Clean Water Act.
Truth: This claim is belied by the Act itself. The Clean Water Act expressly prohibits the discharge of pollutants to "navigable waters," not all waters, and explicitly recognizes the "primary responsibilities and rights of States" to protect local waters.
: Congress has the constitutional authority to regulate all waters in the United States.
Truth: The Clean Water Restoration Act would extend federal authority further than any bill in history and is patently unconstitutional. The U.S. Supreme Court has frequently declared that there are limits to federal authority and has ruled that federal regulation of all waters in the United States would create a constitutional conflict.
Claim 4: Although the Clean Water Restoration Act purports to regulate all waters in the United States, federal officials will not have authority to regulate backyard ponds and drainage ditches.
Truth: The Act speaks for itself. It would regulate "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, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing ... ."
Claim 5: Unless the Clean Water Act is redefined to cover all waters in the United States, millions of acres of wetlands will be lost.
Truth: The Clean Water Act has never been the primary factor in wetlands protection. In its report Conserving America’s Wetlands 2008, the federal Council on Environmental Quality documented that between Earth Day 2004 and Earth Day 2008 approximately "3,600,000 acres of wetlands have been restored or created, improved, or protected" without relying on old command and control policies under the Clean Water Act. This was achieved primarily through cooperative agreements among federal, state, and private stakeholders. During this same period, according to CEQ, the Clean Water Act was credited for creating or protecting no more than 25,000 wetland acres per year.