Conservation activists are pushing legislation in Congress to expand the power and reach of the Clean Water Act in the name of protecting wetlands, but some members of North Carolina’s congressional delegation say the bill would further erode the rights of landowners to make decisions about their property.
Rep. Jim Oberstar, D-Minn., introduced the bill, the Clean Water Restoration Act, in May. The legislation would replace the term “navigable waters of the United States” with “waters of the United States” in the Clean Water Act of 1972.
The change would give the federal government regulatory power over a wider range of waters, including mudflats, sandflats, sloughs, prairie potholes, wet meadows, and playa lakes. The bill would also allow the government to restrict human activities affecting these protected waters.
Supporters say the bill is necessary to restore the original meaning of the Clean Water Act, which they argue was damaged by two U.S. Supreme Court rulings that limited the ability of the Environmental Protection Agency and U.S. Army Corps of Engineers to restrict some types of land use.
“This bill is designed to restore the authority of the Clean Water Act so it has the same effect it had prior to the Supreme Court’s rulings,” Oberstar said in a written statement. “This legislation will not create onerous new rules or regulations.”
But some N.C. members of Congress say the legislation goes beyond the intent of the Clean Water Act and imposes sweeping regulations on landowners.
“I am concerned that this bill would infringe upon the rights of property owners across the nation, especially farmers,” said Rep. Robin Hayes, R-8th, a member of the House subcommittee on water resources and environment, where the measure is assigned.
“In addition, it opens the door for competing interpretations of the Clean Water Act, which will end up in court, and over time will lead to narrower and narrower parameters for farming operations,” Hayes said. “The net effect of that could be further compromising farmers’ ability to farm and their private property rights.”
Expanding the scope of the Clean Water Act could have a significant affect on North Carolina and other regions of the country with large amounts of wetlands, according to Don Parmeter, executive director of the American Property Coalition.
“This is a bill that I can’t imagine anyone representing a rural area would support,” Parmeter said. “It gives the federal government the hammer. Private property owners would be told what they can and cannot do.”
Parmeter is also concerned about the stiff criminal penalties the Clean Water Act levies for non-compliance. Negligent violators face as much as one year in prison and $25,000 in fines per day of violation, while knowing violators face a maximum three-year prison term and $50,000 per-day fine. The strictest penalties are for violators who put others at risk of death or serious injury — up to $250,000 in fines and 15 years in prison.
Even though the bill would expand the scope of the Clean Water Act, the penalties for violation would not change, causing some people to question whether such a structure is equitable, Parmeter said.
“Something is out of kilter when federal prosecutors recommend years of prison time and millions of dollars in fines for citizens who exercise common sense use of their own land,” he said.
Lawmakers from the North Carolina, however, differ on whether the bill is needed and what kind of impact it would have on the state. Four congressmen — Reps. G. K. Butterfield, D-1st; Brad Miller, D-13th; David Price, D-4th; and Mel Watt, D-12th — have signed on as cosponsors of the measure.
“The original intent of the [Clean Water Act] was to protect the water that Americans use daily for agriculture, drinking, and recreation,” Butterfield said. “The current language fails to sufficiently keep industrial and commercial users from polluting waterways, putting an invaluable resource in danger.”
Similarly, Miller thinks government agencies are having a hard time determining which waters are protected under the Act. “This bill clarifies jurisdiction and protects smaller streams at the top of watersheds to protect our water supplies,” he said.
Price takes issue with the Supreme Court rulings in 2001 and 2006 that sided with property owners in a dispute over the enforcement of the Clean Water Act. He said the decisions have led to “considerable confusion about the circumstances under which the Clean Water Act applies to isolated wetlands.”
“In my view, we must protect wetlands, including non-navigable wetlands, because they are critical components of the ecosystem,” Price said. “They help filter pollution, minimize flooding, and provide critical habitat for wildlife.”
Other lawmakers see the issue differently. Rep. Virginia Foxx, R-5th, said the bill would not reaffirm the original intent of the Clean Water Act and would instead expand the act’s meaning to the point of breaching private property rights.
“By inserting the term ‘waters of the United States’ for ‘navigable waters,’ it injects a measure of ambiguity into the law,” Foxx said. “Ultimately, I think it will cause more uncertainty, rather than clarifying the issue.”
Hayes is also concerned the measure would take away the ability of local governments to make land-use decisions and federalize the process with new layers of bureaucracy.
Butterfield and Price, however, say the bill would protect wetlands without encroaching on landowners’ rights. “This bill maintains individual property rights [and] only limits actions that adversely impact a neighbor’s water,” said Butterfield. Price said it’s possible to protect both the environment and property rights.
“I believe we can do this in a balanced way that addresses the legitimate rights of property owners,” Price said. “However, we must always recognize that actions by private citizens can have ecological repercussions that affect the broader population.”
The House subcommittee on water resources and environment conducted two hearings on the bill in July, and another is scheduled for this April.
David N. Bass is an associate editor of Carolina Journal.