Water bill would be 'the worst' 

It gives the federal government control over all water and the watersheds, therefore control over all land as well, according to Cushman.

Cushman sent out a fax warning about a likely vote on the bill coming this Wednesday. The bill is sitting in Senator Barbara Boxer's Environmental and Public Works Committee.

"Boxer tried to ram through a vote on S 787 Thursday, May 7, but was stopped," Cushman wrote.

Nothing has formally happened with the bill since it was introduced and sent to the committee on April 2.

Peter Rafle, Boxer's staffer on the committee, told the Pioneer Press that the bill is not scheduled to be voted on at this moment.

Pacific Legal Foundation (PLF) President Rob Rivett believes the bill is clearly beyond the authority allowed the federal government.

At issue is whether the Clean Water Act, which limits the federal authority over "navigatable waters" such that it would affect interstate commerce, thus falling under federal constitutional authority or if the new language in the proposed bill giving the feds authority over all water is beyond the limit of federal constitutional power.

Reed Hopper, PLF's principal attorney, believes the bill is "patently unconstitutional" and would "push the limits of federal power to an extreme not matched by any other law, probably in the history of this country."

Hopper has argued this before the United States Supreme Court in the past, winning a 2006 case which reined in overbroad federal regulation under the Clean Water Act.

Currently, the Federal Clean Water Act applies to "navigable waters." The proposed Clean Water Restoration Act would remove the phrase "navigable waters" and replace it with the broader phrase "waters of the United States."

"This change would expand the reach of federal land use regulation to an unlimited extent, subjecting every pond, puddle, and ditch to control from Washington, D.C.," said Hopper.
On the other side of the capitol, the issue has raised concern for Congressman Wally Herger.

"I am concerned that an overly expansive view of the term 'waters of the United States' - whether through regulation or an amendment to the Clean Water Act (CWA) passed by Congress - would significantly reduce the rights of private property owners without significantly enhancing environmental protection" Herger told the Pioneer Press.  "This proposal would give EPA and the Corps sole jurisdiction over any standing water across the country."

Indeed, there is little land anywhere in the country that lacks some sort of hydrologic connection to a permanent body of water, according to Herger.  Taken to the extreme, a broad interpretation the CWA places the federal EPA and Corps as the central land-use authorities in the nation. 

"I have opposed similar proposals in the past and would oppose this measure should it come before the House of Representatives for consideration," Herger said.

As a non-profit organization, Pacific Legal cannot take a position on legislation, however, it can assess a bill and offer an opinion on a regulation's legality.

Rivett believes this bill is unconstitutional.

"The proposed law solidifies this federal expansion well beyond the historic interpretation of the Constitutional limitations on federal jurisdiction under the Commerce Clause" said Siskiyou County Supervisor Marcia Armstrong.  "It consumes the historical and limited jurisdictions previously delegated to the State and local government over intrastate navigable streams and local non-navigable streams. "

You can inform Senator Boxer about your view on this bill by calling (202) 224-3121.