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Clean Water Restoration Act Gains Detractors

wetland-image2Advocacy groups representing utilities, industry, agriculture and landowners are mounting an offensive against the proposed Clean Water Restoration Act, which is coming up for committee vote in the Senate.

The act, S 787, would broaden regulation of the nation’s waterways, most notably removing the requirement that regulated waterways be “navigable.”

In so doing, the government would essentially be able to regulate everything from standing water in floodplains to creeks that run behind business and residences.

In a letter to Senate Environment and Public Works Chair Barbara Boxer and ranking member James Inhofe, the American Farm Bureau Federation said that the proposed law would “extend to all water — anywhere from farm ponds, to storm water retention basins, to roadside ditches, to desert washes, to streets and gutters, even to a puddle of rainwater,” stated the letter. “For the first time in the 36-year history of the act, activities that have no impact on actual rivers and lakes would be subject to full federal regulation.”

Agricultural operations would be subject to civil lawsuits that currently are not possible, the Farm Bureau stated. If un-navigable waterways are added, businesses and farms would be subject to civil lawsuits from organizations and individuals who don’t like the way the business or farm is using property, reports Wilson County News.

The Heritage Foundation calls the act “troubled waters for property owners.”

The foundation says, “The CWRA is an invitation for federal regulators (or environmental organizations filing lawsuits) to shut down any use of land that they don’t like so long as there is a little water somewhere in the vicinity. If the past is any guide, this law will be used to stop a tremendous amount of economic activity.”

The act has the support of conservation groups including Ducks Unlimited, the National Wildlife Federation, the Theodore Roosevelt Conservation Partnership, and Trout Unlimited, states Ammoland.com.

The Clean Water Restoration Act calls for regulation over “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),” including “mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds….”

The act may come up for vote in the Senate Environment and Public Works Committee June 18.

The National Center for Public Policy Research has created a Web site with links about the act.

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7 thoughts on “Clean Water Restoration Act Gains Detractors

  1. From the Great Lakes to Puget Sound, from the Mississippi River to the Everglades, and from Chesapeake Bay to the Colorado – we can only protect the great waters of America if we safeguard the countless streams that feed them and the millions of acres of wetlands that help keep them clean. Perhaps that is why today, the Senate EPW committee rejected the spurious arguments of the powerful polluters cited in your article, and instead voted to restore protections vital to America’s great waters. As its name indicates, the Clean Water Restoration Act does no more than restore the original scope of the Clean Water Act that our nation adopted some 37 years ago – to protect all the waters of the United States.

  2. Thank you for your article on the CWRA. Here’s how it works: The trust agency for the CWRA (currently USACE & EPA under current CWA) would issue guidance on what would be determined jurisdictional under the new CWRA, and current methods for delineation would be employed in the field. Tying a wetland to a navigable water body would not be a component of the jurisdictional determination, but could be a factor. Important to differentiate stream beds (bounded by ordinary high water marks) and wetlands (boundary determined in the field using delineation techniques). In practice, you’d probably see more isolated wetlands regulated, but under current Significant Nexus Test guidance for streambeds, I doubt that more streams would be regulated under a CWRA because the current SNT guidance is easily broadly applicable. In summary, as far as extent of regulation, you’d see a jurisdictional determinations resembling pre-SWANCC decision (which removed jurisdiction for isolated wetlands) for wetlands and streambed jurisdictions similar to what we have now post Rapanos decision (which provided for the SNT).

  3. It may be trite, but there is tremendous truth to the saying “the devil is in the detail.” And I can assure you by and large most lawyers (particularly the great minds) probably spend most of their time obsessing over the fine print.

    In the context of the CWRA it may seem silly to be arguing over what it means for water to be “navigable” or not, when the real issue is keeping our water clean. But that particular fine print, and how it is interpreted, has a profound effect on the power of the federal government over the waters of the United States. And thus that fine print has an enormous impact on the lives of the people who are affected by those waters.

    The things lawyers obsess about often seem unimportant – and perhaps sometimes they are – but far more often we obsess over them because they have enormous implications to how real people live their lives.

  4. While the CWRA could seem somewhat “radical” in its statements, I do not believe it says it will attempt to cover everything from roadside ditches or puddles, as the Farm Bureau individual wrote. I usually don’t find radical, interpolated statements to be of any real worth or consideration. The real issue is that, in the wake of cases such as Rapanos and SWANCC, the Clean Water Act is losing its ability to regulate the cleanliness of our nation’s waters because the legal framework is now unclear and unstable. For example, in SWANCC, federal agencies, i.e. the ACE and EPA, do have jurisdiction over traditional navigable waters such as large rivers and waterways, but not over isolated, non-navigable ones such as emergent wetlands, prairie potholes, etc. that are vital sources of other economic activity, i.e., the many billion dollars that are generated by waterfowl hunting and birdwatching, as well as fishing, both private and commercial. Wetlands provide great economic benefits that are largely unrealized, for whatever reasons. SWANCC eliminated the ability of the government to have a hand in keeping these areas from being developed, esp. if they were trying to protect it for purposes in the Migratory Bird Rule. Furthermore, the Rapanos case eliminated the clear boundary of who can say a non-navigable tributary or adjacent wetland is jurisdictional, when it produced 2-3 different, complex opinions on the matter. The agencies must determine whether or not the water body actually does in fact affect a navigable body of water (“significant nexus analysis”). Because of these complications, many cases have now been either lost in courts or have simply been dismissed because they require a “significant nexus assessment” which can take a lot of time and resources from federal agencies and, ultimately, American taxpayers. The goal of CWRA is, in my opinion, not to tell American’s what they can and cannot do with their water, but to help Americans enjoy cleaner, better water. Currently America is losing over half of its wetlands, areas critical to help mitigate floods and storm surges, remove toxins from the environment, and provide habitat for fish and wildlife (which are a valuable commodity for both sportsmen, commercial trappers, fishermen, etc.). There will undoubtedly need to be some more discussions as to the wording of this act to help dissuage the contention about its reach, but I think it is overall trying to clear up the confusion as to what is considered a US jurisdictional water and how to keep those waters clean. After all, it is nice to wake up and see the rivers you played and fished in as a kid free of trash, debris and pollutants. many Americans want to conserve and protect nature and the ecosystem services it affords us. Many ask: why pass a federal law to protect our waters from pollution? I ask: why not pass one to help make our water cleaner, our economy healthy, and our ecosystems healthy? After all, healthy ecosystems make healthy people. I am not saying that farmers, miners and the very people that provide our foods are evil or anything less than good folks, I am just saying that many of us are not aware of the impacts our activities have on the health of other people and the environment that provides us many services. I would hope that many look at this Act as a potential way to help us watch after it. Perhaps incentives and easement programs would be more appropriate than simply stating control over something, that or being more clear and definite about what kind of regulations are going to be put on national water, whatever their definition may be.

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