Oberstar’s Water Bill Sets Up Biggest EPA Power Grab Yet

Phil Kerpen President, American Commitment
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Apparently the EPA’s current regulatory rampage is inadequate for the astonishingly big government taste of Jim Oberstar of Minnesota. The EPA is already limiting airplane de-icing fluid, launching a public propaganda campaign on the benefits of regulation, and readying a dizzying onslaught of global warming regulations. But the chairman of the House Transportation and Infrastructure Committee envisions something even more extreme: dramatically expand the Clean Water Act to give the EPA and the Army Corps of Engineers control over all the water—and all the land—in the United States.

The Oberstar bill, formerly (and in the Senate, still) known as the “Clean Water Restoration Act,” now renamed in the House the “America’s Commitment to Clean Water Act,” is the most extreme assault on property rights in the history of the United States. It is also an affront to the Constitution, which established a federal government of limited, enumerated powers.

When the Clean Water Act was originally debated in Congress in 1972, the idea of federal water regulation was novel. Regulating and protecting the water supply had always been a local responsibility, and there was no clear federal authority in the Constitution to encroach on this area. So Congress turned to the same overworked clause recently employed to try to justify a national health care mandate—the Commerce Clause. Thus the Clean Water Act applied its regulatory requirements to “navigable waters” of the United States, waters on which interstate commerce is conducted.

That’s why the Clean Water Act falls under the jurisdiction of Oberstar’s Transportation and Infrastructure Committee—it’s supposed to regulate the waterways of interstate commerce. (For a complete analysis of the legislative history, see John Broomes’s excellent analysis.)

In short order the EPA and the Army Corps of Engineers went far beyond a reasonable interpretation of navigable waters, going so far as to base regulation of isolated intrastate waters on the “migratory bird theory” that birds are engaged in interstate commerce. This would logically subject a bird feeder in your backyard to federal regulatory jurisdiction. This outlandish legal theory was rejected by the Supreme Court in 2001, when it ruled in SWANCC (Solid Waste Agency of Northern Cook Country) that the Clean Water Act does not apply to isolated wetlands, and even more decisively in 2006, when it ruled in Rapanos that the word “navigable” in the Clean Water Act actually means navigable.

The Oberstar Bill strikes back at the court and swings the pendulum wildly in the other direction, deleting the word “navigable” from the law and expanding the Clean Water Act to all the waters in the United States, whether or not there is any connection to interstate commerce. This ignores the fact that navigability was the basis for the Clean Water Act’s original claim to federal Constitutional authority.

Moreover, the bill also expands regulatory authority to “activities affecting these waters,” an extremely broad provision to regulate land hidden inside a water bill. With an expansive ability to regulate any land that can affect any water—however small and isolated—the bill creates federal jurisdiction over all the land and all the water in the United States.

In testimony to Congress in 2007, Reed Hopper of the Pacific Legal Foundation, the lead counsel in the successful Rapanos Supreme Court case, said this about an earlier version of the Oberstar bill:

“This definition of federal authority is not a ‘restoration’ of congressional intent. It far exceeds the jurisdictional scope of the current Clean Water Act as it appears in the text of the statute. It even exceeds the extravagant scope of the existing federal regulations on which this definition is, in part, based. 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. Neither an ornamental pond not the proverbial kitchen sink are excluded.”

Clean water is a worthy goal, and our country has made remarkable progress towards it. But such a vast federal power grab will undermine local decisions and obliterate private property rights. Congress appears determined to seize power over all aspects of our lives, but most Americans understand the wisdom of our Constitutional system and know that local land and water regulation should remain local. Today Oberstar reintroduces his bill. If members of Congress move forward with Oberstar’s massive water and land grab, voters must hold them accountable in November.

Phil Kerpen is vice president for policy at Americans for Prosperity. He can be reached on Twitter, Facebook, and through www.philkerpen.com.