Washington, D.C. – During a Committee hearing today on the scope of federal authority over the nation’s waters and wetlands under the Clean Water Act, Republican leaders cautioned that recently introduced legislation to clarify this issue may instead dramatically expand federal regulatory authority and muddy the waters of jurisdiction.
“We’re all here for the same purpose: to protect our environment and the quality of our nation’s waters and wetlands,” said U.S. Rep. John L. Mica (R-FL), Transportation and Infrastructure Committee Republican Leader. “However, any expansion of the definition of ‘wetlands’, if not carefully crafted, could lead to costly litigation, more red tape and more uncertainty for future efforts to protect the environment.”
Despite years of regulations and guidance from federal agencies and various court rulings, Clean Water Act jurisdiction is still confusing and the section 404 wetlands permitting process remains Byzantine in complexity. Although legislative proposals introduced in this Congress purport to resolve the jurisdiction issue and restore the intent of the Act, Mica disagreed.
“I am concerned that these proposals will vastly expand Federal powers over private property, upset the long-standing cooperative relationship that the Federal government and the states have had with regard to water management and water quality, and create even more confusion and uncertainty over application and interpretation of the Act,” Mica said.
“These changes would effectively erase many decades of jurisprudence and invite the Federal courts to decide the constitutional limits of Federal authority under the Clean Water Act.
“This, in turn, will spur more litigation as the government and stakeholders struggle to clarify the uncertain scope of jurisdiction under the proposals,” Mica added.
“I applaud the Chairman for his environmental goals, which we all share, but I am very concerned that this bill represents the largest ever expansion of Federal powers over private property and creates a larger cloud of confusion over application and interpretation,” said U.S. Rep. Richard Baker (R-LA), Water Resources and Environment Subcommittee Ranking Member. “Clarity of existing authority, not an expansion of it, is what is necessary.”
Environmental law expert M. Reed Hopper of the Pacific Legal Foundation, who testified at today’s hearing, stated that rather than restoring the intent of Congress when it created the Clean Water Act, legislation introduced by Transportation Committee Chairman James Oberstar and U.S. Rep. John Dingell (H.R. 2421) would far surpass the original scope of the Act.
“Indeed, with its claim of authority over ‘all interstate and intrastate waters,’ this bill pushes the limits of federal power to an extreme not matched by any other law, probably in the history of this country,” Hopper said. “Neither an ornamental pond nor the proverbial kitchen sink are excluded.”
Rather than clarifying the Clean Water Act’s intent, the result of this unprecedented jurisdiction grab will be ongoing uncertainty, exponentially greater regulation, and costly litigation as the courts continue to variously interpret the Act and piece together a jurisdictional Frankenstein’s Monster.
“The bill authorizes Congress to defer to the courts to determine ‘the fullest extent that these waters, or activities affecting these waters, are subject to the legislative power of Congress under the Constitution.’ In effect, the Act is an abdication of the legislative role,” said Hopper.
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