Wetlands-Does Congress really need to regulate every drop of water in the US?

6 May 2010

Apparently some members of Congress didn’t read my post,  Are “thousands of the nation’s largest water polluters outside the Clean Water Act”? No! because Congress keeps introducing legislation to try to broaden its authority.  The Clean Water Act was enacted to regulate navigable waterways. The Army Corps of Engineers interpreted “waters of the United States” expansively to include “tributaries” and wetlands “adjacent” to such waters and tributaries.  The Supreme Court restored some balance and sanity in cases like Rapanos to hold that all waters are not federally regulated and that every connection between a surface water body and a wetland should not result in federal regulation.  The Rapanos case is cited by many as the end of federal wetland regulation.  I can tell you, that just isn’t so.  I represented Mr. Rapanos and after the Supreme Court decision, the federal government did not give up and walk away. Quite the contrary.

Unhappy with that construction of States’ rights to regulate and limits on federal power, Congress has introduced legislation, HR 5088,courtesy of OpenCongress.com, which will place under federal regulation  all waters, “including intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds.”

If enacted, what does this mean?  Well an unnecessary expansion of federal powers for sure.  The recent disaster in the Gulf of Mexico is again teaching us the lesson learned in Prince William Sound in 1989, that wetlands are very important for a variety of reasons.  In the wake of this most recent disaster one can almost hear Congress calling out for broader federal powers and I can agree that better regulation of the oil industry is needed.  However, the Gulf wetlands are already federally regulated.   So, is there a need to broaden federal power into your background? What do you think?

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