A frenzy over birdbaths, paddles and the waters of the US
© Getty Images

Too often in Washington, myth becomes fact, rhetoric becomes reality, hysteria replaces reason and inconvenient truths are ignored. While policymaking can be tedious and complicated, that is no excuse for allowing such a vital process to degenerate into spin, hyperbole and scare tactics.

Today, we see this game play out over and over. I mean, who can forget "death panels" and "calves the size of cantaloupes?"


Most recently, the inside-the-Beltway spin machine is whipping up a frenzy over federal regulation of birdbaths, puddles and roadside ditches. Really? So now, in addition to death panels, we have to worry about Uncle Sam seizing control of the puddles on my lawn? Hard to believe, but this is the state of play regarding the definition of the waters of the United States subject to regulation under the Clean Water Act (CWA).

I'll explain; but first, a little history.

In 1972, Congress, with the backing of U.S. industry, decided that we needed to provide a strong, comprehensive national level of protection to our nation's waters. After overriding the veto of then-President Nixon by a 10-1 margin, a bipartisan Congress put in place the modern Clean Water Act, which by all accounts has been an overwhelming success. In 1972, no more than 30 percent of our nation's surface waters were swimmable or fishable. Now, 70 percent of our waters meet this standard. The public health and economic benefits of this turnaround are incalculable, and it has happened because a haphazard collection of state and local laws has been replaced by comprehensive national standards.

Who could object to clean water, improved public health and economic vitality? Turns out, quite a few. Today, as a result of two flawed Supreme Court decisions, and an effort by the George W. Bush administration to weaken federal protection of our waters, confusion and regulatory uncertainty abound. But don't take my word for it. Listen to the American Farm Bureau describing the current Clean Water Act regulations: "With no clear regulatory definitions to guide [the federal government's] determinations, what has emerged is a hodgepodge of ad hoc and inconsistent jurisdictional theories."

More from the Farm Bureau, joined by the National Association of Home Builders: “The Bush administration guidance is causing confusion and added delays in an already burdened and strained permit decision-making process, which ultimately will result (and is resulting) in increased delays and costs to the public at large."

In fact, the current regulatory structure is so arbitrary, confusing and frustrating that groups ranging from the National Association of Home Builders to the Farm Bureau to the National Wildlife Federation have all requested the federal government develop a new set of rules to clarify the scope of Clean Water Act protections.

In April 2014, that is exactly what the Obama administration attempted to do when it initiated its public comment period on a new federal rule to clarify the scope of CWA protections — a public comment period which, I would note, is of a scale unprecedented in the history of the CWA. In fact, the proposed rule as drafted by the Environmental Protection Agency (EPA) fits entirely within the constraints on jurisdiction of the CWA as imposed by the Supreme Court rulings, and does not subject any previously unregulated body of water to CWA protection.

You would think that if industry and the environmental community were both asking for this clarity, it should be a done deal, right? I mean, who could possibly oppose providing those regulated by the CWA with greater certainty and reduced compliance costs, and at the same time clarifying the comprehensive protection of our precious waters that our citizens have grown to expect?

But remember, in Washington, when you are faced with a tough question, reach for the rhetoric and change the subject. To wit: According to the floor statement of one Republican member: "There is something terribly wrong when the federal government is attempting to regulate our nation's puddles, streams and ditches." Not even remotely true, but who wants to speak the truth about the dangers to our rivers and lakes when a juicy sound bite is available?

Even if, in some parallel universe, this rhetoric was even plausibly true, one would think that members of Congress could pass language to avoid any possible expansion of regulation of puddles and birdbaths, and yet still provide the regulatory certainty requested both by industry and environmental organizations.

Again, apparently not in Washington, because that is exactly what Rep. Donna Edwards (D-Md.) tried to do in May, with her floor amendment to the so-called Regulatory Integrity Protection Act.

This amendment would have prevented federal agencies from including in any final CWA rule-making provisions to expand the historic scope of the CWA, including the regulation of puddles, birdbaths, ditches and groundwater, or from requiring CWA regulation of land-use activities or farming, ranching or forestry practices that have traditionally been exempt. Yet, inconceivably, every single House Republican voted against this amendment.

Why? Because it would have taken away their ability to distract and mislead with rhetoric and hyperbole. Absent this hysteria, Congress would be forced to answer the question of why it is opposed to restoring some sanity and predictability to the protection of our nation's waters.

Gone are the days when Congress demonstrated the political courage and the wisdom to face up to the environmental and economic challenges of the time. No, today in Washington, when Congress is asked to protect our precious waters, its response is "Save your birdbath!" And we wonder why the approval rating of Congress languishes in the single digits?

Bishop is a former Democratic congressman from New York and is currently Distinguished Professor of Civic Engagement and Public Service at St. Joseph's College in New York.