The federal government has an insatiable appetite for controlling Michigan’s (and other states’) natural resources. The Clean Water Restoration Act, introduced by Michigan congressmen John Dingell and Vern Ehlers along with James Oberstar, D-Minn., and Russ Feingold, D-Wis., is a recent example. The proposed legislation would establish the federal government’s authority to regulate virtually all water in the United States.
In the 2006 U.S. Supreme Court Rapanos v. United States decision, the court correctly placed limits on the U.S. Army Corps of Engineers’ authority to regulate isolated wetlands unless those wetlands have a "considerable nexus" to "navigable water." The Clean Water Act specifies that the Corps has jurisdiction on navigable waters. Prior to the Rapanos decision, the Corps and U.S. Environmental Protection Agency increased their regulatory jurisdiction of the nation’s waters and wetlands by expanding the definition of navigable water to include all land that could have even a remote connection to navigable water.
Defying any common sense, the Corps defines as navigable waters drainage ditches in humid states that seldom flow water and dry washes in arid states — even though they may be many miles from permanent streams or rivers. This expansive regulatory definition has seriously eroded the private property rights of landowners who are required to obtain a federal 404 permit in order to develop their property. A landowner who is successful in obtaining a 404 permit often still faces costs that can run into the hundreds of thousands of dollars and time delays that may be months or even years in many cases.
The authors of the 1972 federal Clean Water Act utilized federalist principles in crafting the law. Congress intended that the federal government would take the lead in protecting navigable waters. The Clean Water Act defines navigable waters as "waters of the United States including the territorial seas." Navigable waters which often cross state lines are usually important to commerce. The law contemplates that states would take the lead in protecting waters of regional or local importance. The U.S. Supreme Court in 2001 put limits on federal jurisdiction of isolated wetlands in deciding Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers. In that case, the Supreme Court rejected the Corps’ novel "migratory bird rule" which maintained that migratory birds cross state lines and land in isolated wetlands (pot holes), thereby providing the Corps with federal jurisdiction of those wetlands.
The Corps then created what I have dubbed "the migratory water molecule rule." The basic premise of that new approach is that all water is interconnected and that no matter how far an isolated wetland is from navigable water, theoretically a molecule of water can eventually find its way to those navigable waters. In deciding the SWANCC and Rapanos cases the Supreme Court stuck down an expansive interpretation of the Corps’ authority to regulate isolated wetlands. While the Rapanos decision stuck down the Corps’ broad interpretation, the court did not provide a clear substitute, and instead created an amorphous "considerable nexus" test. The Rapanos decision — while limiting federal jurisdiction — has caused more confusion by leaving the lower courts to decide what constitutes a considerable nexus between isolated wetlands and navigable waters and waters that are a considerable distance away.
The federal government should focus its attention on "waters of the nation" while the states are best equipped to regulate the waters within their respective borders. Wetland and water quality issues vary from state to state. For example, wetland issues are not the same in Michigan as they are in Arizona. States are in the best position to make the natural resource protection, private property rights and economic development decisions that reflect their individual situations. Congress understood that in 1972 when the Clean Water Act was crafted. In the last 35 years the states have shown that they are more than capable of protecting their natural resources — in fact the majority of environmental protection is done by state government and not by the federal government.
Congress needs to precisely define the Corps’ authority under the Clean Water Act to regulate isolated wetlands. Unfortunately, the Clean Water Restoration Act provides the Corps with almost unlimited authority to regulate most wetlands in the country. It is critical that states have the responsibility and authority to regulate their own waters as envisioned by the authors of the original Clean Water Act.
Russ Harding is director of the Property Rights Network at the Mackinac Center for Public Policy, a research and educational institute headquartered in Midland, Mich. Permission to reprint in whole or in part is hereby granted, provided that the author and the Center are properly cited.