Madam Chairman, our Committee has examined the issues surrounding Clean Water Act litigation and jurisdiction several times, most recently in December. Thank you to all of today’s witnesses who have taken time out of their busy schedules to testify before the Committee this morning. It is no secret this Committee has long advocated for policies that are protective of overall environmental health. I am proud of my years of service advocating for policies that improve our nation’s drinking and waste water facilities without overburdening our communities. I have also worked tirelessly on legislation that protects and preserves wetland resources while respecting private property rights.
Today’s legislative hearing will focus on S. 1870, the Clean Water Restoration Act. This bill, as currently written, will expand federal jurisdiction authority in a way that pushes the outer limits of Congress’s constitutional role. If Congress is to amend the Clean Water Act, any changes must provide clarity and reduce lawsuits. This bill does neither. It will not curtail litigation, but rather increase it, as stakeholders seek legal clarity on what exactly are the outer limits of Congressional authority. We should not propose and pass legislative language that increases uncertainty and increases an already litigious environment.
Many supporters of this legislation argue that the bill simply clarifies and restores the scope of federal jurisdictional waters and will return the regulatory authority and certainty to the pre-Rapanos-Carabell Supreme Court decision era. I believe this statement is grossly misleading.
S. 1870 would strike the words “navigable waters” and replace the term with “waters of the United States ” defined as “…ALL interstate and intrastate waters and their tributaries.” Most egregious, though, is that the definition establishes federal authority over not only all waters, but “…to the fullest extent that these waters or activities affecting these waters, are subject to the legislative power of Congress under the Constitution.” In 1972, the framers of the Clean Water Act chose to tie federal regulatory jurisdiction to the term “navigable waters,” limiting jurisdiction under the Commerce Clause. By striking any reference of “navigable” from the law, this bill will expand the federal reach under the Act far beyond what the authors intended.
In other words, by striking any reference to the Commerce Cause, all waters – regardless of size or significance, and importantly, any activities affecting all waters – could be regulated by the federal government until the courts determine the federal reach was unconstitutional. For example, individual property owners could have a small depression in their field or yard that can collect water after a good rain. If this bill passes, those waters become jurisdictional and all activities that could affect that depression or the waters in that depression must be permitted under section 404. Further, homeowners could potentially need national pollutant discharge elimination system permits (NPDES) for storm water running off their property or from the gutters on their roofs.
The effects of this legislation go far beyond the legal nuances and potential litigation. As you are well aware, Madam Chair, many of our local governments, including cities and counties across the country, face increasing financial burdens to improving their water and transportation infrastructure. I have received letters and testimony from all over the country opposing this legislation, including this testimony from National Water Resources Association, Western Urban Water Coalition and Western Coalition of Arid States. They say that this legislation will “…unduly constrain state and local flexibility, while greatly increasing the time and costs associated with meeting water supply and wastewater treatment obligations, [and] timely completion of necessary projects, such as those authorized in the recent WRDA legislation.” In the last five years, construction costs have risen over 30%. As a former mayor, I can tell you local governments and land owners do not have the resources to delay projects for years while waiting on a permit that will unlikely lead to cleaner water. I am pleased to have Mr. Brand here to speak to the concerns of local governments.
We also have Mr. Smith here from Montana , conveying many concerns from our agricultural community. The current costs of producing the world’s safest food supply are increasing, and adding layers of regulatory hurdles makes it harder for the family farmer to survive. The narrowly written savings clause only partially protects the agricultural community and opens families to potential litigation and fines for what is now considered routine work. I would like to include in the record the letter signed by 24 state agriculture associations and several state sportsman’s associations.
Finally, advocates of this bill assert it as the save-all for clean water, but it will likely do nothing to improve overall water quality. Increasing federal bureaucracy and requiring property owners to go through a lengthy permitting process for activities that may affect a puddle on their private land hardly constitutes protecting our nation’s water.
As I’ve said before, the federal government owes it to the American public and individual property owners, including the millions of homeowners across the country, to have a clean, concise and constitutional definition of “waters of the United States .” The Clean Water Restoration Act does not meet any of these goals and will simply result in more lawsuits and more confusion.
I look forward to all of our witnesses’ testimony on S. 1870.