If it’s wet, Oberstar says regulate it

Published Wednesday, June 27, 2007

The federal government would be granted authority, for the first time ever, over every backyard pond, wetland, ditch, culvert, and pipe - literally all wet areas in the United States - under a bill authored by Congressman Jim Oberstar. This bill is an extreme expansion of federal power over private landowners and public lands users.

For the first time ever, the federal government would also be granted authority over all “activities affecting these waters”. If enacted, these changes will dramatically alter the extent to which federal agencies will be able to control our lives and our use of land.

Removing one word changes everything. Oberstar would remove “navigable” from the 1972 Clean Water Act and replace it with “waters of the United States”. He asserts that his bill “restores” and “clarifies” the Clean Water Act of 1972, but that is a serious misrepresentation.

If the bill is enacted, landowners need be fearful that virtually any land may be part of the “waters of the United States” even for features as innocuous as to whether rainwater or drainage passes and leaves a visible mark — if only “the presence of litter and debris”, to quote one of Army Corps of Engineers increasingly broad rulings. Until the Supreme Court decided recently in favor of landowners in SWANCC and Rapanos, the Corps treated as “waters of the United States” examples such as: typically dry land features as arroyos, coulees and washes; land within the 100 year floodplain - that is, connected to a navigable water by flooding once every 100 years; even saturated areas that might be 20 miles away from a navigable body.

Landowners will quickly learn they are “polluters” under regulations containing overbroad definitions of pollutants. In fact, a landowner who deposits fill material, i.e., “pollutants” such as rock, sand or dredged material in locations deemed waters of the United States may face possible criminal liability and steep civil fines for a broad range of activities.

Passage of this bill will lead to a bureaucratic enforcement nightmare and endless litigation, the beneficiaries of which will be environmental attorneys and the multi-billion dollar environmental lobby that can afford them. Without the resources to mount a defense against these forces, the average citizen will have little chance of receiving fair treatment in the political or legal arena.

There are better and cheaper solutions to achieving environmental objectives. Cost effective state and local alternatives have been demonstrated here in Minnesota and elsewhere throughout the country. For example, through joint powers agreements and support from the MN legislature, a locally-driven river management program was completed in northern MN in the 1990's. This has proven to be a successful and popular alternative to the controversial and cumbersome federal wild and scenic rivers program.

More and more people and interest groups are beginning to look beneath the guise and popular appeal of the term “clean water” and seeing this bill for what it really is. Who doesn't want clean water? Those who care most about a particular river or body of water are those who live near it or enjoy it for boating, swimming or fishing or habitat protection. Concerned citizens are the front lines and should be fully engaged, not eliminated, from the process of protecting land and water.

The 1972 Clean Water Act was the impetus of a great American success story because Americans have committed billions of dollars to implementing the Act. We should resist all attempts to turn the Act into a top-down centralized power grab that turns citizens against their government and thwarts citizen-initiated environmental protection. Perhaps the best advice comes from Justice Breyer, who sided with the dissent in Rapanos and observed that the agencies should “write new regulations, and speedily so.”

Linda Runbeck is a former state senator from Circle Pines and is president of the St. Paul-based American Property Coalition. Don Parmeter is executive director of the American Property Coalition and has had a 30-year career in environmental policy.