Federalizing That Wet Spot Out Back

By May 23, 2008Miscellaneous

A good explanatory piece and legal analysis in the National Law Journal on the Clean Water Restoration Act, the legislation that would expand federal regulation of entirely localized bodies of water, including fens, bogs, ponds, intermittent creeks and darn I got my shoes wet. “Not a drop unregulated” is by John C. Martin and Amy B. Chasanov at Washington-based Patton Boggs, who represented an industry plaintiff in a relevant case.

The House Transportation and Infrastructure Committee recently held a hearing on the Clean Water Restoration Act, the legislation that would delete references to “navigable water” in the Clean Water Act, with proponens claiming the change would “restore” past reading of the law, prior to recent court decisions the authors discuss in the piece. The proposed policy is foolish, unworkable and power-accruing.

As Martin and Chasanov explain:

[The] Clean Water Act is intended to balance the state/federal relationship in a way that preserves state authority. Its authors expected to maintain the “primary” responsibility of states to regulate their waters. Of course, most states already regulate “state waters” and define the term more broadly than federal waters. Indeed, many enforce standards more stringent than federal law would require. More important, these programs are tailored to local conditions and needs. That a part of the states’ programs is beyond federal control does not do violence to the act’s original structure. Indeed, if the states don’t have some modicum of regulatory power reserved under the statute, one finds it difficult to conceive of any “balance” between state and federal authority — much less the states’ “primary” authority prescribed by the act.

Of course, Congress is free to change this balance. But we doubt extending Clean Water Act jurisdiction to its constitutional limits would make for good policy. Surely, neither the Corps nor the EPA welcomes the prospect of examining every discharge or disturbance to all isolated — occasionally moist — depressions everywhere in the country. We find it hard to believe that regulators would want the burden of mapping local ditches or intermittent trickles in every state; their resources are better expended elsewhere.

Case Western Reserve law professor Jonathan Adler testified at the House hearings (written testimony), and he appears as a guest this week on “America’s Business with Mike Hambrick,” explaining the legislation would misallocate limited federal resources AND invite endless litigation. The interview is available here as an .mp3 file.

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