Troubled waters

The Waxman-Markey global warming bill is far and away the most worrisome environmental measure currently working its way through Congress, but it is certainly not the only cause for concern. Despite the all-encompassing global warming debate (and perhaps because of it) other problematic green measures are also being rushed through the House or Senate with minimal discussion. One such measure is S. 787, the Clean Water Restoration Act (CWRA). Like Waxman-Markey, the CWRA would do much more harm than good, especially for farmers, ranchers, developers, energy producers, and other property owners. The Senate’s Environment and Public Works Committee has hurriedly scheduled June 18th as the day to both debate and vote on the bill.

For years, the 1972 Clean Water Act has been misused in the name of protecting Americas waters and wetlands. The statute’s original limitation that its key provisions only apply to navigable waters was largely ignored. Instead, the law was broadly applied to a wide variety of circumstances, including remote and inconsequential drainage ditches or temporary puddles and even to completely dry land.

The statute’s complex and costly provisions interfered with the economic use of the lands it encompassed, including farming and ranching operations, construction of housing and other buildings, and domestic oil and gas production.

Fortunately, two Supreme Court decisions, Solid Waste Agency of Northern Cook County v. United States in 2001, and Rapanos v. United States in 2006 partially reined in these excesses.

Now, the CWRA seeks to overturn these Supreme Court decisions and make the statute more expansive than ever. In fact, it would turn the Clean Water Act into what some analysts believe to be the most dangerous federal intrusion on private property rights in existence. First, it seeks to remove the limitation that the statute only apply to navigable waters and apply it to all waters of the United States. Then it seeks to broadly define such waters as not just “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),” but also “mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds….” Yes, prairie potholes. Note also that the CWRA makes clear that intrastate as well as interstate waters are the purview of the feds.

The CWRA is an invitation for federal regulators (or environmental organizations filing lawsuits) to shut down any use of land that they don’t like so long as there is a little water somewhere in the vicinity. If the past is any guide, this law will be used to stop a tremendous amount of economic activity. Though not as far-reaching as Waxman Markey, the CWRA would be a serious blow to the rural economy, not to mention private property rights.