Who's Protecting Us in Washington?

We've all heard stories of ordinary folks going about their business who've been caught up in a vortex not of their making.  Here's one of them.

Ocie Mills and his son Carey wanted to build on the Florida water front land they owned.  They got all the permits they thought they needed, and hauled in 19 loads of clean sand, preparing to build on the lot.

Enter the US Army Corps of Engineers, who told the Millses that they had placed their sand on a wetland area without a permit, and that was a federal offense under the Clean Water Act.

For some reason, the federal government decided to criminally prosecute this man and his son.  (We don't know why, but if you go here and scroll down to and click on "The Sandman in Jail" you can view the local TV news report, where the federal prosecutor is interviewed)

Ocie didn't think they had done anything wrong.  They didn't hire an attorney.  A jury found him and his son guilty of violating the Clean Water Act and the Rivers and Harbors Act.  They were fined and sentenced to 21 months in a federal penitentiary.  They appealed and lost.

After serving their sentences and restoring the property "to its original wetland elevation," a federal district court judge held an evidentiary hearing and found that, at the time the Millses placed the fill on their land, it wasn't a wetland after all.  The Millses had not been allowed to present evidence of that fact at their trial.  The judge wrote:

This case presents the disturbing implications of the expansive jurisdiction which has been assumed by the United States Army Corps of Engineers under the Clean Water Act. In a reversal of terms that is worthy of Alice in Wonderland, the regulatory hydra which emerged from the Clean Water Act mandates in this case that a landowner who places clean fill dirt on a plot of  subdivided dry land may be imprisoned for the statutory felony offense of "discharging pollutants into the navigable waters of the United States."

U.S. v. Mills, 817 F.Supp. 1546 (N.D.Fla. 1993)

After carefully reviewing the applicable law, the judge found that he was compelled to deny the Mills' motion to vacate, set aside, or correct their sentences.

If this were a movie, you might imagine some hero coming on the scene to go to Washington DC and  right this wrong, change the law so that this wouldn't happen to anyone else.  For truth, justice and the American way.

Minnesota's James Oberstar wants to do the opposite.  He wants to expand the jurisdiction of the Clean Water Act so that it covers every collection of water in the country, whether it's a temporary mud puddle or a navigable waterway.

He calls it the "Clean Water Restoration Act."  Environmental groups say it's about restoring clean water.

It's not about clean water.  It's about power.

I wrote about this bill last Fall here.  It's in the news again because the House Committee on Transportation and Infrastructure held a hearing on the bill, H.R. 2421, April 16, 2008, and the deadline for submitting written testimony is next week on Wednesday, April 30th. 

The bill would greatly expand federal jurisdiction over the water in this country, extending it from the original jurisdiction over "navigable waters" to control of all waters, whether navigable or not.

At the beginning of the hearing, Oberstar related how the original 1972 legislation had been vigorously debated in conference meetings over ten months. With such vigorous debate, one must assume that the language that found its way into the final bill had been carefully considered, analyzed, discussed and debated by all sides before the bill became law -- especially the language that sets the scope of the law, that says when and where it will apply.
 
Nonetheless, Oberstar goes on to say that the current language of the law must be changed in order to be true to Congress' original intent.   

If Oberstar were not a politician, this kind of irrational statement might be used as evidence in a competency hearing.  But, of course, he has been a politician for decades and none of us is surprised to hear a politician talk like the sock puppet of single minded special interest groups like the Sierra Club.

If you watch the video of the hearing, Oberstar's initial remarks in support of the bill are given with a demeanor that suggests that not even he believes what he is saying.

What followed was a procession of people testifying that the bill greatly expands federal jurisdiction beyond what was originally intended under the 1972 law.

John Woodley, Jr., from the US Army Corps of Engineers, the same Corps of Engineers that enforced the Act against Ocie Mills, spoke against the bill.  He disputed Oberstar's assertion that the bill simply restores federal jurisdiction over waters of the US as originally intended in the 1972 Act.  He testified: 

It is our understanding that under HR 2421, the jurisdiction of the Clean Water Act would be extended to an unspecified limit of Congress’s legislative power under the Constitution.
. . . .
We have several serious concerns with H.R. 2421 as drafted.  First, it appears that the consequence of the legislation will be to extend the jurisdiction beyond those waters determined to be not jurisdictional under the SWANCC and Rapanos decisions. This appears to go beyond the original intent of Congress in establishing the jurisdictional reach of the Clean Water Act, which reflected a careful balance between the legitimate and important Federal interest in protecting water quality and the equally important and long-standing interest of States in managing and allocating land and water resources within their boundaries. HR 2421 also goes beyond any interpretations of jurisdiction advanced by the agencies in the 30 years preceding the SWANCC and Rapanos decisions. For example, it is not clear whether the bill would require any link to interstate commerce for a water to be jurisdictional.

A second concern is that the bill could open up a whole new line of litigation regarding the limits of Congress’s legislative power under the constitution, creating additional uncertainty and unpredictability for the environment, the regulated community, and State and Federal agencies.

Benjamin H. Grumbles, EPA Assistant Administrator, echoed these concerns.

Although there were many, many organizations that submitted both written and verbal testimony against the bill, Oberstar stated that 300 organizations support the bill as introduced.

Environmental organizations would be expected to support any bill that extends the government's jurisdiction in environmental matters because by doing so, it would extend the power of those organizations to intervene in governmental processes and claim that the governmental agency is not doing a good enough job enforcing the law. 

Environmental organizations have done this time and time again to try to stop governments from issuing permits for new power plants, fortify Mississippi levees and replace old bridges.  Basically, the power of environmental advocacy organizations increases as the power of government increases.

They say that politics is about power.  Not content with the power to put people like Ocie Mills in a federal pen for 21 months, he wants to give the government the power to make even more of us subject to the draconian punishments of the Clean Water Act.  He says it's to protect the environment.  Who's protecting us?