Wanted: Clean water, no micromanagement
By Bob Vice
published in the Capital Press
July 8, 2010
Keeping America's waterways and water supply clean is a crucial goal. So is guarding against federal micromanagement of our lives and property.
Unfortunately, a push is on to use the cause of clean water as an excuse to unbalance our federal system and undermine our liberties by concentrating regulation of land use in Washington, D.C.
The proposed "Clean Water Restoration Act" was the first legislative salvo in this campaign. Unveiled in 2007, the CWRA was reintroduced in the Senate last year by Sen. Russ Feingold, D-Wis. With a simple semantic change, it would usher in unprecedented centralization by giving federal officials the powers of a national zoning board.
Under the current Clean Water Act, federal authority extends to "navigable waters" -- rivers, lakes and oceans. The CWRA would erase the word, "navigable," substituting the far broader phrase, "waters of the United States."
"This change would subject every pond, puddle and ditch to control from Washington," observes attorney Reed Hopper, my colleague at Pacific Legal Foundation, a legal watchdog organization for property rights and limited government. In 2006, Hopper won the landmark Clean Water Act case of Rapanos v. United States at the U.S. Supreme Court. It reined in officious federal bureaucrats who were second-guessing property owners even where no navigable waters were present. The CWRA is an attempt to overturn Rapanos and lift restraints on federal regulators. They would be licensed to issue orders on private property across the country, without having to show any connection to navigable waters.
Bipartisan opposition to this power grab has stalled it in the Senate, at least for now. But a new, parallel effort was recently introduced in the House by Rep. Jim Oberstar, D-Minn. Its title is different and has a feel-good ring: "America's Commitment to Clean Water Act." But the aim is the same: federal control of land use.
Unlike Feingold's measure, the Oberstar bill includes a nod to the Constitution's limits on federal power. The measure says it would federalize waters only where there is a connection to "interstate commerce." But it goes on to state that all water, everywhere, can fit this definition. Even "geographically isolated" water, if polluted or "degradat(ed)," can have "a substantial relation to and effect on interstate commerce."
"The Oberstar legislation is so broad that the only practical limit is the regulators' own subjective judgment -- in other words, no limit at all," Hopper says. "Federal bureaucrats could control virtually any wet spot in the country, and much of the surrounding land."
Both bills take aim at the historic American understanding that land use regulation should generally be entrusted to local communities and their elected leaders.
Everyone who owns property should be concerned, but farmers and ranchers have special reason for worry. Flooding, droughts, freezes, windstorms -- these natural challenges go with the territory for people who devote their lives to the land. But red tape blizzards are another matter. If you don't have a river, lake or other navigable water on or near your land, the feds shouldn't have a veto over how you operate your farm or ranch.
Farmers and ranchers need a clean water supply. Across the country, including in my own state of California, they already work with state and local agencies to protect water purity. Adding federal layers of bureaucracy can mean redundancy, inefficiency and significant, unnecessary expense in both dollars and time. The federal permitting process is costly. One study, cited by Justice Antonin Scalia in the Rapanos decision, reported that even small fill projects cost nearly $30,000 and take more than 300 days to process, while larger land-use projects cost more than $271,000 and require an average 788 days.
The Army Corps of Engineers has been known to insist on permits for even basic agricultural work, such as the discing of farmland.
The federal government has a vital role to play in guaranteeing clean water. But its proper focus is on rivers, lakes, streams, and wetlands that are integrated with navigable waters. Common sense, traditions of local control, and constitutional principles of federalism all say that isolated waters -- and routine land-use decisions on most private property -- are matters for state and local oversight, not dictates from Washington, D.C.
Bob L. Vice is a senior adviser with Pacific Legal Foundation, a legal watchdog organization for property rights and limited government. An avocado grower in Fallbrook, Calif., Vice is a former president of the California Farm Bureau Federation.