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Issue Analysis

    The Clean Water Act Violates Private Property Rights

    Ducks Unlimited, a conservationist organization that seeks to preserve wetlands and protect waterfowl wildlife, has come out in favor of restoring the Clean Water Act protections of “isolated” wetlands. Reapplying Clean Water standards to these wetlands will help protect the indigenous waterfowl population, so they say. This will also benefit hunters who wish to preserve native duck populations on these wetlands. The organization’s website encourages anyone who cares about ducks and duck hunting to call their congressmen and express their concern for clean water and wetland protection.

    While this call for the reapplication of Clean Water Act protections to “isolated” wetlands may seem reasonable, it is actually terribly misguided. Before jumping on the bandwagon of “protecting ducks and other waterfowl,” one should probably ask why certain “protections” of the Clean Water Act were ever rolled back in the first place. The Supreme Court has heard a number of cases regarding property rights violations that took place under the Clean Water Act. In one 2005 case, an Idaho couple preparing a 0.63 acre plot of land for the construction of their new home was issued an order by the EPA to remove piles of fill material and replant the vegetation that they had cleared away. This was after they had gone through the process of acquiring all of the necessary permits to begin construction. Failure to comply with the order would result in a daily fine of up to $32,500. Rather than clear off the land, the couple attempted to take their case to court in order to prove that their property did not qualify as a wetland and was therefore not subject to EPA jurisdiction. Thankfully, after refusal by lower courts to hear the case, the Supreme Court sided with the landowners. The full details of the case can be read here.

    The Clean Water Restoration Act, which would restore the original authority of the EPA, has the potential to open the door to a host of property rights violations and harassment. Cases such as the one mentioned above are instances in which the Supreme Court checked the power of the EPA to infringe on the property rights of individual citizens under the purview of the Clean Water Act. The Restoration Act, however, would nullify the progress made by the Supreme Court and create an unprecedented regulatory burden on property owners nationwide. One of the most startling tenets of the act is that it grants the EPA control of all waters in the United States. Currently, the EPA is in control of all “navigable” waters, which at least implies some limitations on its regulatory scope. However, by removing the word ‘navigable,’ the Restoration Act grants the EPA virtually unbridled regulatory control of almost all property in the United States.

    This bill goes far beyond the protection of waterfowl and the conservation of wetlands. Instead, it grants the Federal government the authority to violate the property rights of farmers, ranchers, and homeowners. Ducks Unlimited may champion a noble cause, but its support of the Clean Water Restoration Act is far from admirable. The Clean Water Restoration Act amounts to a massive property grab by the Federal government, and Ducks Unlimited is certainly mistaken to support it.