GIVEN A CHOICE between clean
Back in the early days of the environmental movement, Congress under President Nixon passed the Clean Water Act, giving the Environmental Protection Agency responsibility for cleaning up and protecting the nation's navigable waterways.
Why "navigable"? Because navigable waters are ones over which commerce and trade occur, and Article I Section 8 of the Constitution gives Congress the power to "regulate Commerce among the several States ." Congress, in passing the Clean Water Act in 1972, recognized both this federal responsibility and the limits placed on Uncle Sam by the "enumerated powers" principle of constitutional law.
In the decades that followed the act's passage, the Army Corps of Engineers, working with the EPA on pollution issues, began routinely claiming jurisdiction over wetlands abutting navigable waterways. In 1986, the Corps expanded its oversight to any body of water upon which a migratory bird could land.
This overreach prompted a correction. Two Supreme Court decisions did just that. In a 2001 case, SWANCC vs. Army Corps of Engineers, the court said the Corps had no standing to enforce its migratory bird rule. And in Rapanos v. the U.S. Government in 2006, the court found the abutted wetlands rule to be unsupported by the law.
Displeased with both decisions, Rep. Jim Oberstar, D-Minn., has introduced a bill called the Clean Water Restoration Act. He says the aim of the bill, which would remove the word "navigable" from the Clean Water Act, is to return the law to its original intent.
Yet, as opponents point out, removing that one word would give the federal government jurisdiction over every stream, farm pond, swamp, and water-holding ditch in the country.
Ranchers are particularly riled. Dave Scott, president of the Texas and Southwestern Cattle Raisers Association, says, "Federal jurisdiction would be brought all the way to the ranch, creating more bureaucratic government red tape, as well as expensive and unnecessary engineering and possibly even litigation." Groundwater, Mr. Scott notes, is not excluded from the bill, leaving that resource open to federal control, too.
Clean water is a great boon. Those of us who live near and love the Chesapeake Bay understand that well. But we also know that expanding the powers of Washington beyond those enumerated in the Constitution is an expensive and dangerous "fix" to any problem.
The simple solution: Let the states protect the nation's waters, with federal backup. State government officials have a better appreciation of local needs than Beltway bureaucrats. With research and guidelines provided by Washington, they can do a good job. If they fail, they are answering to voters.
Protecting our waters is important--but so is protecting our Constitution. The Clean Water Act intentionally limited federal control to navigable waters. Steady as she goes.