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Issue  171  Article  295
Published:  10/1/2009

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Federal Bill termed 'Largest Federal Land Grab'
Chris Burti, Vice President and Senior Legal Counsel

Our nation has been debating health reform, recession recovery, regulation of financial industries, and our presence in Afghanistan and Iraq. Meanwhile, a bill said to be the "largest federal land grab in our nation's history" has garnered little attention. If adopted as proposed, Senate Bill 787 will likely have a substantive impact upon the sale of real property in the unlikeliest of locations.

The Clean Water Restoration Act, sponsored by Sen. Russell Feingold (D-Wis.) quietly passed out of committee in June and is now scheduled to come before the full Senate this fall. This legislation is titled "A bill to amend the Federal Water Pollution Control Act to clarify the jurisdiction of the United States over waters of the United States." That ‘clarification' would remove the term "navigable" from the language of the original Clean Water Act of 1972 and give regulatory agencies of the federal government jurisdiction over all surface water in the country, both natural and manmade.

The official summary reads as follows:

Clean Water Restoration Act - Amends the Federal Water Pollution Control Act (commonly known as the Clean Water Act) to replace the term "navigable waters" that are subject to such Act with the term "waters of the United States," defined to mean all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing, to the fullest extent that these waters, or activities affecting them, are subject to the legislative power of Congress under the Constitution.

Tributaries include drainage ditches and even French drains on private property. There is no legislative definition of "activities affecting these waters" in the Clean water Act so S.B. 787 would allow federal regulation of any and all "activities" that affect any waters. As the existing regulations governing navigable waters and wetlands regulations are proving to be extremely complicated and at times interpreted inconsistently, this legislation complicates the problems further by providing the perfect cultivating medium for the prolific growth of a bureaucratic culture of new rules, regulations and permits that affecting water remote land at the expense of us all.

This would make every square inch of land where rain falls or snow melts subject to federal regulation. A developer desiring to subdivide a farm would have to obtain a federal permit to fill in drainage ditches or even to tile them. Road cuts and culverts would equally require a permitting process. Want to drain a farm pond to clean it out and refill? What about a municipality undertaking the relocation of a storm drain? It doesn't take much imagination to observe that installing gutters on a house that provide runoff to a storm drain that empties into a retention pond, much less a stream, would come under the purview of this legislation.

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