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The late Jim Oberstar submitted a bill in 2010 to amend the Clean Water Act so that the EPA would have jurisdiction over every drop of water anywhere in the United States. If you think that’s hyperbole, you’d better think again:

The “waters of the U.S.” issue is back. H. R. 5088, America’s Commitment to Clean Water Act (ACCWA), was recently introduced by House Committee of Transportation Chairman Jim Oberstar (D-Minn.)

Like Oberstar’s previous bill, ACCWA does two things. First, it eliminates the term “navigable” from all sections of the Clean Water Act (CWA). The term “navigable waters of the U.S.” is used more than 80 times in the CWA. NACo continues to oppose the removal of “navigable” from the act, because of the danger its absence poses to years of hard-won jurisdictional parameters.

Second, ACCWA removes the reference to “activities affecting” those waters and redefines “waters of the U.S.” by using a hybrid of current agency regulatory definitions. While ACCWA uses language based on existing agency regulations for a “water of the U.S.,” it is not identical to existing regulations. Furthermore, certain sections of the existing regulations were deleted and new language was added to the “waters of the U.S.” definition in ACCWA.

This is important because Oberstar’s bill didn’t go anywhere in 2010 and because the Obama administration is attempting to implement these changes through an EPA regulation:

Today, Torrey Westrom submitted comments to the Environmental Protection Agency over the EPA’s proposed rule to redefine “waters of the U.S.” – or navigable waters – under the Clean Water Act.

The new rule would redefine navigable waters as any body of water that is adjacent to or near a larger downstream water source, making it subject to federal regulations and permitting. The rule would also allow the EPA to seek comment on other waters, which could later be subject to regulation as well.

Sen. Westrom submitted this comment:

The Environmental Protection Agency’s latest proposal to change the definition of ‘navigable waters’ under the Clean Water Act is a naked attempt to expand their own authority beyond the scope of the law and will have devastating consequences for Minnesota’s farmers, families, land owners and small business owners.

Congress was clear when it passed the Clean Water Act that the EPA’s authority would cover ‘navigable’ waters, but this new rule will extend the EPA’s authority to everything from small ponds to ditches in fields. This is government overreach, pure and simple. Federal officials are throwing the legal definition to the wayside and creating nearly limitless regulatory authority, which will hurt our communities. Any changes should be made through the legislative process, where voters can keep government accountable, rather than through a federal agency’s rule making.

Farmers and small business owners in places like where I live in Elbow Lake, and our surrounding agriculture communities in northwest Minnesota, cannot afford any more burdensome regulations handed down from the federal government. After a historically harsh winter and with a sluggish economy, the last thing America’s agriculture sector needs is unnecessary burden that will stifle business. We know our towns, down to the ponds and ditches in our fields, better than any unelected bureaucrat from Washington.

The EPA should ditch the proposed rule, which will harm farming communities and families.”

This is the key paragraph from Sen. Westrom’s comment:

Congress was clear when it passed the Clean Water Act that the EPA’s authority would cover ‘navigable’ waters, but this new rule will extend the EPA’s authority to everything from small ponds to ditches in fields. This is government overreach, pure and simple. Federal officials are throwing the legal definition to the wayside and creating nearly limitless regulatory authority, which will hurt our communities. Any changes should be made through the legislative process, where voters can keep government accountable, rather than through a federal agency’s rule making.

Democrat front groups are undoubtedly cheering the EPA’s proposed rule. These Democrat front groups, like the Sierra Club, the Nature Conservancy and other like-minded environmental activist organizations want the federal government to have jurisdiction over every drop of water in the US, regardless of whether it’s navigable water that forms the border between Minnesota and Wisconsin or whether it’s a low spot on private property in Idaho that occasionally has water in it.

The Clean Water Act, aka the CWA, specified which waters were covered by the Act. Because the CWA was passed by Congress and signed by the President, the legislation’s scope is limited. If they’d wanted the federal government to control all of the water in the United States, they should’ve written that into the bill. That’s where the Sierra Club’s, the Nature Conservancy’s and the League of Conservation Voters’ plan falls apart.

Had that been written into the text of the CWA, people would’ve been outraged.

Further, the executive branch isn’t allowed to change the clearly written language of a signed bill. Only the legislative branch is allowed to do that. The executive branch’s responsibility is to “faithfully execute” the laws that Congress enacts. If they don’t like specific provisions in a law, their only constitutionally sanctioned option is to talk Congress into changing that language.

Sen. Westrom is right in criticizing the federal government’s plan to govern through executive fiat. This isn’t a kingdom. It’s a constitutional republic with a clearly written Constitution.

Frankly, I don’t care if the EPA likes or hates the CWA. Their chief responsibility isn’t predicated on whether they like or hate a bill. Their chief responsibility is to faithfully execute the laws that are on the books, not the laws they wished were on the books.

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