Montana Senate to Feds: ‘Leave Our Water Alone’

Published April 1, 2009

The Montana Senate has approved a resolution saying the state’s wetlands and seasonal streams should be controlled by Montana and not the federal government.

Two Democrats joined 27 Republicans in the 29 to 19 vote “adamantly” opposing federal legislation that would grant Washington unprecedented power to regulate all waterways in the United States.

“Government starts at the bottom, not at the top, and our quality of water in Montana is, I think, exquisite,” said Sen. John Brenden (R-Scobey), the resolution’s sponsor, as reported by AP on February 2.

Unprecedented Federal Power

The proposed federal legislation at issue is the Clean Water Restoration Act (CWRA). Originally introduced in 2007, CWRA is sponsored by Rep. James Oberstar (D-MN), with a Senate companion version sponsored by Sen. Russ Feingold (D-WI).

Among other things, CWRA would bring federal oversight to all “waters of the United States” as opposed to “all navigable waters of the United States,” as provided for in the Clean Water Act (CWA) of 1972.

Brenden and the other Montana lawmakers supporting his resolution believe CWRA would run roughshod over the rights of property owners in their state.

“It’s what I call the goodbye clause, or goodbye private property clause,” AP quoted Brenden as saying.

Continual Controversy

CWA has been mired in controversy since its enactment nearly 40 years ago. What started out as an effort to reduce pollution in the nation’s rivers, lakes, and streams quickly expanded to include regulatory control over ponds, wetlands, dry lakebeds, intermittent streams, and drainage ditches.

Next to the Endangered Species Act, CWA is the nation’s most powerful land-use statute, and its enforcement has sparked innumerable lawsuits and general regulatory confusion.

In an effort to clarify the situation, the U.S. Supreme Court in two landmark decisions ruled the federal government had overstepped its authority in regulating isolated wetlands. The court’s rulings in the cases—Solid Waste Agency of Northern Cook County (SWANCC) v. United States Army Corps of Engineers in 2001 and Rapanos v. United States in 2006—angered environmental activists and prompted Oberstar and Feingold to introduce their legislation.

Controversial Overreach

Their bill goes far beyond the original intent of the CWA, however, a point driven home by the Pacific Legal Foundation’s M. Reed Hopper in testimony before Congress in 2007:

“This definition of federal authority [in the Clean Water Restoration Act] is not a ‘restoration’ of congressional intent,” Hopper noted. “It far exceeds the jurisdictional scope of the current Clean Water Act as it appears in the text of the statute. It even exceeds the extravagant scope of the existing federal regulations on which the definition is, in part, based.

“Indeed,” Hopper continued, “with its claim of authority over ‘all interstate and intrastate waters,’ this bill pushes the limits of federal power to an extreme not matched by any other law, probably in the history of this country. Neither an ornamental pond nor the proverbial kitchen sink are excluded.”

Least Suitable Agency

Analysts are concerned the Oberstar and Feingold bills would place nearly unlimited authority over private land use in the hands of a branch of the military far distant from the people and properties actually affected by the decisions it would make.

“One of the biggest problems with Oberstar’s Clean Water Restoration Act is that by changing the definition of navigable waters it would put the Army Corps of Engineers in the position of being in charge of a massive nationwide land permitting process,” said Jonathan Tolman, a senior fellow in risk and environmental studies at the Competitive Enterprise Institute.

“As part of the Army, the Corps of Engineers is one of the least-suitable agencies for implementing a permitting program. If Congress is serious about protecting wetlands, a better approach would be to put the permitting authority in the hands of states, as Congress has done with virtually all other permitting programs,” Tolman explained.

CWRA was blocked in Congress in 2007-2008, but congressional observers expect a renewed push by Oberstar and Feingold in the current session.

Bonner R. Cohen ([email protected]) is a senior fellow at the National Center for Public Policy Research in Washington, DC.