David Donley, Illinois State Grange President, recently distributed the following letter to the Editor:

Sweeping legislation introduced in this session of Congress could have significant impact on private property rights and economic growth both here in Illinois and across the country. Representative James Oberstar (D-MN) and Senator Russell Feingold (D-WI) have sponsored H.R. 2421 and S. 1879, titled the Clean Water Restoration Act. These bills seek ostensibly to “restore” protections under the Clean Water Act lost due to Supreme Court decisions in 2001 and 2006. Unfortunately, the bills as introduced would expand the scope of the Clean Water Act far beyond its original intent while increasing the confusion over what aquatic resources are supposed to be protected by the federal government. The legislation has major implications for water quality programs administered by local and state governments, as well as for retirees, families, farmers, ranchers and owners of small businesses in Illinois and across the nation– many of whom have a significant portion of their net worth tied up in homes, farms or other real estate. But these impacts may never be fully considered by Members of Congress before they vote if the normal legislative process is circumvented as proposed by powerful special interests in Washington, D.C.

The Clean Water Act was originally enacted to prevent pollution of “navigable waters” of the United States. Congress determined that “navigable waters” deserve federal protection because of the important role they play in facilitating interstate commerce. Congress explicitly left the authority to regulate non-navigable waters with state and local governments. Since the passage of the law more than 30 years ago, however, there has been considerable uncertainty over exactly what water resources are subject to federal regulation. The absence of consistent standards in the Act has led to abuse by federal bureaucrats who have disregarded the important role in environmental protection played by state and local governments in their on going efforts to expand their regulatory jurisdiction over our nation’s water resources and private property.

Two U.S. Supreme Court cases, 2001’s Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers and 2006’s Rapanos v. U.S. have significantly reduced potential abuse under the Act, restored the original intent of Congress and reinvigorated the role of state and local governments in natural resource protection. The Court’s decisions provide clear boundaries on the federal government’s previously unchecked latitude to define “navigable” and exert federal authority over private property. Isolated, non-navigable waters, for example, are no longer subject to federal regulation. The Clean Water Restoration Act would restore the virtually limitless regulatory power federal agencies had assumed in contravention of the original intent of the law. Further, the bills’ references to “activities affecting these waters” could give federal agencies further ability to assume nearly limitless regulatory authority over not only water, but land and the air as well.

Recently, special interest lobbying pressure in Washington, D.C. to pass the Clean Water Restoration Act has included proposals to bypass normal subcommittee and full committee procedures and debates. The Congressional committee system is designed to assure that all legislation receives a full and fair hearing and a factual public record is available for review before Members of Congress cast their final votes. It provides for using amendments to correct flaws in legislative language. The National Grange, the nation’s oldest general farm and rural public interest organization representing family farmers and rural citizens, has strongly urged House Speaker Nancy Pelosi to oppose circumvention of the legislative process in consideration of the Clean Water Restoration Act. We support a full and open discussion on amendments to keep the current definition of navigable waters in the statute and we urge caution before Members of Congress decide to arbitrarily overturn the clear guidance of the U.S. Supreme Court regarding the scope of federal authority to regulate private land and non-navigable waters.