Senate committee votes to expand Clean Water Act

Issue Date: June 24, 2009

By Ching Lee
Assistant Editor

Despite strong opposition from agricultural groups and private property rights advocates, a bill that would expand the federal reach of the Clean Water Act, and that could have sweeping effects on everyday farming activities, passed out of a key U.S. Senate committee last week.

The Senate Environment and Public Works Committee voted 12-7 to advance S. 787, also known as the Clean Water Restoration Act, which now faces consideration by the full Senate.

If adopted, the legislation would give the Environmental Protection Agency and the Army Corps of Engineers authority over nearly every wet area in the nation, including farm ponds, intermittent streams, ditches and, potentially, groundwater, said Elisa Noble, director of livestock, public lands and natural resources for the California Farm Bureau Federation.

The original Clean Water Act of 1972 gives the EPA and the Army Corps authority to protect rivers and streams that flow to navigable waters. But over the years, the two agencies broadened the interpretation of what they considered to be within the scope of their jurisdiction, going from rivers, lakes and streams to isolated wetlands and other features.

The legislation proposes to delete the word "navigable" from the current Clean Water Act and replace it with "waters of the United States," among other changes. Opponents of the bill say this would allow the federal government to regulate virtually all interstate and intrastate waters, including activities affecting those waters.

Under the legislation, farmers and ranchers would be required to obtain federal permits to carry out their daily land management activities, such as installing culverts or implementing conservation projects, an area traditionally reserved for the states, Noble said.

"S. 787 is a monumental threat to the rights of state and local governments as well as private property owners," she said. "It would allow for an extraordinary expansion of federal jurisdiction, giving the federal government the right to exert inordinate control over private property while opening the door for activists to sue landowners whose activities they don't like."

The Senate committee amended the bill during markup last week in ways that it said would protect existing Clean Water Act exemptions for agriculture. But Noble said the amendment does not address farm groups' primary concern with the bill: removal of the word "navigable," which greatly expands the federal jurisdiction.

"The bill does not provide any exemptions for agriculture," she said. "All it does is restate the existing exemptions and, in fact, create more confusion."

Noble said S. 787 does not exempt any waters or areas from the broad definition of "waters of the United States." It exempts only certain activities from being considered discharges. The legislation also fails to adopt important regulatory exemptions for prior converted cropland and waste treatment systems, she said.

Another concern is that the bill limits the ability of EPA and the Army Corps of Engineers to adopt future regulatory exemptions, Noble added. By setting specific statutory exemptions, some may argue that they are the exclusive exemptions recognized by Congress and that there are no others, she said.

"We know from experience that exemptions are well intentioned, but they become misinterpreted and narrowed in scope over time," Noble said. "The language in S. 787 is very susceptible to future misinterpretation and misimplementation by agencies."

Sen. James Inhofe, R-Okla., a member of the Senate committee, vowed to fight S. 787, while Sen. Mike Crapo, R-Idaho, placed a hold on the legislation and said he plans to filibuster.

A House version of the bill has not yet been introduced, although Rep. James Oberstar, D-Minn., who chairs the House Transportation and Infrastructure Committee, is working on reintroducing legislation similar to his bill from last year, H.R. 2421.

Supreme Court decisions in 2001 and 2006 limited federal jurisdiction over non-navigable wetlands. Proponents of S. 787 claim these decisions caused confusion among wetland regulators and that the legislation being proposed is supposed to restore Congress' original intent of the law.

"However, the diverse geography of our landscape will always create some uncertainty as to what water bodies should be covered under the Clean Water Act," Noble said. "S. 787 does not clarify this, but rather expands jurisdiction to all waters of the U.S. by deleting the word 'navigable.'"

Matt Byrne, executive vice president of the California Cattlemen's Association, said adding more legislation is not a solution because there are already well-defined laws in place to protect wetlands and waterways.

"We're already following one set of rules," he said. "The last thing we need is two sets and potentially conflicting sets of rules on these water sources that are really not a part of the broader spectrum of the nation's waterways."

Noble added that existing conservation programs such as the Wetlands Reserve Program also safeguard and expand meaningful wetlands. She noted that farmers and ranchers already use modern conservation practices to protect the nation's water supplies. Many times these efforts are put in place voluntarily because farmers are driven by a strong stewardship ethic, she said.

"The new proposals would further tie the hands of farm operators and prevent the flexibility to change from planting one crop to another," she said. "Farm landowners are growing more and more discouraged by added regulations, and it may cause some to get out of farming altogether and sell their land for development."

(Ching Lee is an assistant editor of Ag Alert. She may be contacted at clee@cfbf.com.)

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item. Top