HOPPER: Clean water tsunami?

By | Sunday, July 20, 2008

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You've seen the articles in recent weeks breathlessly declaring our nation's waters are at imminent risk of uncontrolled pollution because the Supreme Court did its job and restricted federal jurisdiction under the Clean Water Act in its 2006 Rapanos decision.

Last week, Democratic Reps. Henry Waxman of California and James Oberstar of Minnesota made overheated claims that the Environmental Protection Agency's enforcement of the Act is "faltering" because the agency dropped more than 300 cases after the Rapanos decision due to jurisdictional questions.

It's inconceivable to these lawmakers that the EPA had far exceeded its authority to regulate every pond, puddle and ditch in the nation prior to the Rapanos decision and that the High Court was right to set some limits on federal authority as required by the Constitution, the Clean Water Act itself, state sovereignty, court precedent and the "rule of law."

Given the EPA's prior claim it could regulate virtually all "non-navigable" water bodies in the country, whereas the Clean Water Act only authorizes federal regulation of "navigable" waters, it is surprising the agency did not drop more cases for lack of jurisdiction when the Supreme Court declared the agency had gone too far in the Rapanos case.

Mr. Waxman and Mr. Oberstar are trying to drum up support for the so-called Clean Water Restoration Act, HR 2421, now pending in Congress. That bill is being sold on the patently false claim that Congress always intended for federal officials to control the use of every wet spot in the country (and much of the dry land too). In the Clean Water Act, Congress expressly recognized "the primary responsibilities and rights of the States" to eliminate pollution and determine the "development and use... of land and water resources" locally.

HR 2421 goes far beyond the original intent of Congress and is designed to expand federal authority to an extreme never seen in our history. The bill authorizes federal bureaucrats to control "all water" in the United States, whether private or public, state or federal. You have a pond or ditch in your backyard? Don't be surprised if the feds come knockin'.

The culprit here is not the Supreme Court but heavy-handed federal regulation, which would only increase under HR 2421. Even after the Rapanos decision, federal officials are still expanding their regulatory reach. They now claim the frozen permafrost in Alaska (covering millions of acres) is a jurisdictional wetland subject to federal control.

Rather than faltering, the enforcing agencies continue to impose severe civil and criminal penalties on landowners by declaring the placement of clean dirt on mostly dry land the equivalent of a discharge of a pollutant into "navigable waters."

If the Rapanos decision has finally brought the EPA kicking and screaming to a realization it routinely exceeded its authority in the past, then so much the better. Hopefully, we can look forward to more enforcement cases being dropped because of questionable jurisdictional determinations. Policing local waters and punishing local polluters is the job of the states, not federal bureaucrats acting as a law unto themselves.

Reed Hopper, a principal attorney with the Pacific Legal Foundation, successfully represented John Rapanos in the U.S. Supreme Court. Pacific Legal Foundation (www.pacificlegal.org) is the nation's oldest and most successful public interest legal interest dedicated to protection of property rights, limited government and individual freedom.

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