Waters Advocacy Coalition

Commissioner's view: Clean water bill ends local control

Dennis Fink of Duluth, a St. Louis County commissioner, recently wrote the following opinion column about the Clean Water Restoration Act/America’s Commitment to Clean Water Act in the Duluth News Tribune:

Ask anyone if clean, safe water is important and the overwhelming response will be an emphatic “YES!” Then ask who should be responsible for guaranteeing that clean, safe water is available and the answer most assuredly will be “everyone.” Specifically, that means every local, state and tribal unit of government, as well as the federal government. Herein lies the problem with U.S. Rep. Jim Oberstar’s new bill, America’s Commitment to the Clean Water Act, and its predecessor, the Clean Water Restoration Act.

“The new act, like its predecessor … simply looks to return the federal law to the way it was before the Supreme Court rulings,” the News Tribune wrote in its April 22 Our View editorial, “Clean Water Act: Clean it up already.” But nothing is simple in government. Not even this compact little bill that proposes nothing more than to change the words “navigable waters” to “waters of the United States” and defines this new term. Both sides of this debate agree “navigable waters” defines and limits the activities and actions of the federal government, specifically the Corps of Engineers and the EPA. And the courts have been acknowledging this same fact since 1973, starting only months after the October 1972 passage of the Clean Water Act.

Supporters of the new bill say the original intent of the Clean Water Act will be restored. That may be true as Oberstar remembers it, but congressional documentation disagrees. In 1972, Congress appeared frustrated that the Corps of Engineers was taking a too-narrow view of its authority over traditional navigable waters. Thus, Congress enacted the Clean Water Act, which contains the term “navigable waters” at least 84 times. The intent of the framers (including Oberstar) was to include greater numbers of waters that served as channels of interstate commerce, as long as they connected to land-borne modes of transportation. But a review of the legislative history reveals that, in 1972, Congress did not intend to sweep all intrastate features that did not support commercial traffic into the federal regulatory net, such as isolated waters, drainage ditches, erosional depressions, etc. But by 2001, the long arm of the Corps had reached far beyond these listed features.

Ever since its enactment, the Clean Water Act has been in the court system in some form or another. Most cases have centered on jurisdiction and not on clean water. A 2001 Supreme Court decision addressed the validity of the Migratory Bird Rule. This rule, written in 1985, established the primary theory used by federal agencies to assert their jurisdiction over isolated, intrastate waters. It stated that the U.S. Commerce Clause governed the activities of migratory birds. Therefore, any body of water that these birds could identify, in flight, was the jurisdiction of the Corps. The high court disagreed and concluded, “Permitting the Corps to claim federal jurisdiction over isolated ponds and mudflats falling within the ‘Migratory Bird Rule’ would result in a significant infringement on the state’s traditional and primary power of land and water use.” The court declared the bird rule illegal.

The 2005 Rapanos case similarly addressed federal jurisdiction. This time two cases were consolidated (Rapanos and Carabell), both following the same, familiar fact pattern: wetlands miles away from traditional navigable waters that drained through multiple ditches, culverts and creeks, which eventually flowed to traditional navigable waters. Again the court ruled that the Corps had reached well beyond its authority.

Oberstar asserts the America’s Commitment to the Clean Water Act will restore the federal government’s authority to a time prior to these two court cases. These cases are about the Corps overreaching its jurisdiction. To give them back that power takes away existing local control and places it in the hands of the federal government. I, for one, am against that.

Dennis Fink of Duluth is a St. Louis County commissioner, chairman of St. Louis County’s Environment and Natural Resource Committee and vice chairman of the National Association of County Officials’ Water Subcommittee. He was one of 10 county commissioners nationally who studied the effects of the Clean Water Restoration Act on local government as a member of a National Association of County Officials task force.