# 567

April 2008

Sportsmen: Beware the Clean Water Restoration Act

by
Peyton Knight

Introduction and
Summary

Congress is currently
considering legislation that would substantially broaden the federal
government's authority under the Clean Water Act.  However, like
many misnamed bills before it, the Clean Water Restoration Act is a
lesson in false advertising.  The Act would do more to threaten
the cherished pastimes of hunters, fishermen and other outdoor
enthusiasts than it would to ensure the cleanliness of our nation's
water.

Background

For over three decades,
the Clean Water Act of 1972 (CWA) has been mired in conflict and
ambiguity.  The Act makes it a crime to discharge pollutants into
the "navigable waters of the United States" without first acquiring a
federal permit.  However, what began as a reasonable attempt to
control water pollution in our nation's interstate rivers, lakes and
streams spiraled into unreasonable federal regulation of isolated
wetlands, ponds, dry lakebeds, intermittent streams and drainage
ditches.

This overly expansive
interpretation has resulted in much confusion, not only for
landowners, but also for federal regulators.  For example, in
2004 the General Accountability Office (GAO) reported that staff from
the U.S. Army Corps of Engineers, the federal agency charged with
enforcing the CWA, could not agree on what was considered a protected
wetland under the Act.1  One Corps official told the
GAO "if he asked three different district staff to make a
jurisdictional determination, he would probably get three different
assessments."2

The U.S. Supreme Court
finally attempted to clarify CWA enforcement by ruling that the
federal government had overstepped its bounds when regulating isolated
wetlands in two cases:  Solid Waste Agency of Northern Cook
County (SWANCC) v. United States Army Corps of
Engineers3 in 2001 and Rapanos
v. United States4 in 2006.

These rulings elicited
outcry from environmental activists and prompted U.S. Representative
James Oberstar (D-MN) to introduce the Clean Water Restoration Act
(H.R. 2421), which he claims would "restore the authority of the Clean
Water Act."5  Senator Russ
Feingold (D-WI) introduced a companion bill (S. 1870) in the
Senate.

In reality, the Clean
Water Restoration Act (CWRA) does not "restore" the CWA.
Instead, it greatly expands its scope and jurisdiction.  The bill
would bring federal oversight to activities that affect all "waters of
the United States" as opposed to merely "navigable waters" as called
for in the original CWA.  "Waters of the United States" is
broadly defined in the legislation to include "all interstate and
intrastate waters and their tributaries, including lakes, rivers,
streams (including intermittent streams), mudflats, sandflats,
wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural
ponds, and all impoundments."6

As Pacific Legal
Foundation attorney and Clean Water Act expert M. Reed Hopper told
Congress in 2007:

This definition of
federal authority [in the Clean Water Restoration Act] is not a
"restoration" of congressional intent.  It far exceeds the
jurisdictional scope of the current Clean Water Act as it appears in
the text of the statute.  It even exceeds the extravagant scope
of the existing federal regulations on which the definition is, in
part, based.  Indeed, with its claim of authority over "all
interstate and intrastate waters," this bill pushes the limits of
federal power to an extreme not matched by any other law, probably
in the history of this country.  Neither an ornamental pond nor
the proverbial kitchen sink are excluded.7

The CWRA would also
invite environmental litigators to flood the courts with lawsuits that
challenge all activities affecting any "waters of the United
States."  According to Hopper:

[The Clean Water
Restoration Act] authorizes Congress to defer to the courts to
determine "the fullest extent that these waters, or activities
affecting these waters, are subject to the legislative power of
Congress under the Constitution."...the proposed Clean Water
Restoration Act will just provide another round of intense
litigation.9

At first glance, the CWRA
appears to advance the interests of American hunters, fishermen and
other outdoor enthusiasts, given the connection between wildlife and
water quality.  In reality, the CWRA would threaten these
interests.

Hunters: Beware
the CWRA

Prairie potholes and
sloughs, particularly those found in the prairie pothole region in the
upper Midwest, constitute perhaps the best duck breeding and hunting
grounds in the United States.9  As such, in 2006 nearly 1.3
million hunters flocked to North Dakota, South Dakota, Iowa, Minnesota
and Montana,10 the five states that
comprise the prairie pothole region.

Under the Clean Water
Restoration Act, however, something as simple as constructing a duck
blind on private land on or near these prime hunting waters could
require hunters to submit to a costly and time-consuming permitting
process.

Both "prairie potholes"
(depressed areas that temporarily hold rainwater and snowmelt) and
"sloughs" (swampy depressions typically comprised of stagnant water or
mud) are specifically named in the CWRA as "waters" that would be
subject to regulation - a departure from the original Clean Water
Act.  As a consequence, driving posts into water and mud near a
prairie pothole for construction of a duck blind could constitute
discharging dredged or fill material into the "waters of the United
States," which is illegal under the CRA without a permit.11

In addition, hunters who
fire shot over and near prairie potholes, lakes, rivers, ponds and
wetlands could be considered polluters under the CWRA.  In 1996,
a U.S. District Court in New York ruled against a shooting range when
it found that expended shot, even non-toxic steel shot, is considered
a pollutant under the current CWA.12

Limiting or barring
access to the prairie pothole region and other popular hunting areas
throughout the nation would not only spoil a rich tradition, but
threaten regional economies.  In 2006, hunters spent nearly $1.4
billion on hunting purchases in prairie pothole region states
alone.13  In the
same year, hunting expenditures nationwide totaled $22.9
billion.14

Off-road use of
all-terrain vehicles or trucks, which is sometimes necessary to
transport gear to hunting spots, might be forbidden or require a
special permit under the CWRA.  Traversing a wet meadow or
intermittent stream in a four-wheeler could be deemed a threat to the
"waters of the United States."

In addition to limiting
access to hunting lands, the CWRA poses a threat to the activities of
hunters and wildlife enthusiasts who wish to construct food plots on
their land to attract deer, ducks and other wildlife.  Clearing
scrub or tilling soil to plant such plots could be barred, or require
landowners to embark on a lengthy permitting process under the CWRA if
the proposed plots are in the vicinity of any wetlands, drainage
ditches, wet meadows, intermittent streams, ephemeral lakes or
ponds.  Indeed, there is precedent for such heavy-handed
regulation under the original CWA.

In 2002, in a rare 4-4
tie, the U.S. Supreme Court affirmed a lower court's ruling that a
property owner had violated the CWA when he plowed his dry land in
order to convert it from cattle grazing land into
vineyards.15

Robin Rivett, an attorney
with the Pacific Legal Foundation who worked on the case, found the
court's broad interpretation of the CWA troubling.  "Congress
never intended the Clean Water Act to regulate customary farming
practices or the planting of new crops," he said.16

Under the CWRA, an even
wider array of basic farming practices, including habitat creation and
conservation, could be heavily regulated or restricted.
According to the Texas Wildlife Association:

If the government
expands its jurisdiction [under the Clean Water Act], not only will
federal agencies lose their administrative direction, but will
likely create regulations that actually limit private
conservation...

In addition to
expanding the federal government's jurisdiction, [the Clean Water
Restoration Act] eliminates permitting exemptions for agriculture,
ranching, wildlife management and forestry.  The cost of
permitting can be prohibitive in terms of money and
time.17

When Congress fails to
clearly define regulatory parameters in the legislation it passes, and
instead defers to the courts to divine congressional intent,
everything from the practical to the absurd becomes fair game for
lawsuits.  Any land use activity that could possibly impact the
"waters of the United States," as broadly defined in the CWRA, could
be subject to environmental lawsuits and regulatory scrutiny.
This should be of utmost concern to hunters, who could find
themselves, and their pastime, in the crosshairs should the CWRA
become law.

Fishermen and
Boaters: Beware the CWRA

Like hunters, fishermen
and recreational boaters would also find it more difficult to engage
in their sports under the CWRA.

For example, the
construction of fishing piers and boat docks, which can already
require a permit under the CWA,18 would likely see
enhanced scrutiny under the CWRA.  Such construction could be
regulated in nearly every instance, as nearly every body of water
would qualify for federal oversight.

Though certain activities
that affect navigable waters are already regulated under the current
CWA, the CWRA would place even more activities under the regulatory
microscope.  This is because the CWRA not only broadens the
jurisdiction of land and water to be regulated, but leaves it to the
courts and federal regulators to determine "the fullest extent that
these waters, or activities affecting these waters, are subject to the
legislative power of Congress, under the Constitution."19 (Emphasis added.)
Because specific activities are not defined in the bill, all
activities could be examined and potentially banned or
regulated.

This means trout and
small-mouth bass fishermen could lose access to their favorite rivers
and streams, as wading in these waters necessarily disturbs rocks and
sediment, and therefore could be considered harmful to fish and other
wildlife.  Lead lures, sinkers or split-shot could be deemed
pollutants.

Recreational boating
could be restricted or banned in certain waters due to the incidental
discharge of engine cooling water, bilge water, deck runoff or ballast
water.  In fact, environmental litigators have already struck a
blow against recreational boating under the current CWA.

In 2003, several
environmental organizations filed a lawsuit against the U.S.
Environmental Protection Agency (EPA) for the agency's refusal to
repeal its three-decade-long exemption for certain discharges,
specifically, those that are incidental to the normal operation of
boats, from requiring a permit under the CWA.20  According to the
EPA, such exempt discharges include "any discharge of sewage from
vessels, effluent from properly functioning marine engines, laundry,
shower, and galley sink wastes, or any other discharge incidental to
the normal operation of a vessel."21

In September 2006, the
U.S. District Court for the Northern District of California ruled in
favor of the environmentalists, forcing the EPA to begin regulating
incidental discharges from boats by September 30, 2008.22  Though the EPA is
currently appealing the court's decision, it is also preparing to
implement a new CWA permitting process for all U.S. boat
owners.

"Because the Court's
decision is not limited to vessels with ballast water tanks," the EPA
reports, "it appears to implicate an extremely large number of vessels
and a range of discharges."23  The agency
includes all "State-registered recreational boats" in its tally of
vessels that could now require a CWA permit for operation.24

The pending regulations
prompted U.S. Senator Mel Martinez (R-FL) to introduce legislation
that would exempt recreational boaters from having to acquire a CWA
permit simply to operate their boats.

"Requiring family boaters
to secure a Clean Water Act permit so that they can wash their boat,
fish, or go waterskiing is ridiculous," said Martinez.  "This
permit requirement is unnecessary and onerous.  If allowed to
take effect, it will be costly and essentially
unenforceable."25

Considering the CWRA
would encourage a courtroom examination of all activities that affect
all waters of the United States, fishing, pier and dock construction
and recreational boating could all come under increased fire from
litigious environmental groups.

Shooting Sports
Enthusiasts: Beware the CWRA

Already a target of the
environmental movement, skeet and trap shooting ranges will likely see
increased scrutiny should the CWRA become law.  In fact,
environmental activists have already successfully sued outdoor
shooting ranges under the current CWA.26

The CWA makes it illegal
for anyone to discharge pollutants from any "point source" into
"waters of the United States" without first obtaining a permit.
A "point source" is typically a discernable source of pollution such
as a factory discharge pipe.  However, much like the definition
of "waters of the United States," what constitutes a "point source"
has been subject to broader interpretation.  The EPA and courts
have determined that outdoor shooting ranges loosely qualify as a
"point source" of pollution into our nation's navigable waterways,
and, therefore, are subject to permitting requirements under the
CWA.27

EPA notes that lawsuits
"have been the driving force behind most legal actions against outdoor
ranges."28  For example, in
1994, the Long Island Soundkeeper Fund, an environmental organization,
successfully sued the New York Athletic Club under the CWA because the
club had been operating a trap shooting range on its property.
In this case, the court found that debris from clay targets and
expended shot, including non-toxic steel shot, are pollutants under
the CWA.  According to EPA, "Based on the court's decision... any
range whose shot, bullets or target debris enter the 'waters of the
United States' could be subject to permitting requirements as well as
governmental or citizen suits."29

More recently, Blue Eco
Legal Council, an environmental organization, filed a lawsuit under
the CWA against the United States Department of Justice, Coast Guard,
Navy, Marines and Department of Defense, alleging that an FBI shooting
range in North Chicago is endangering Lake Michigan with stray
bullets.30

The CWRA would create
more opportunities for environmental activist groups to sue shooting
ranges for Clean Water Act violations.  No longer would a range's
activities need to pose a threat to mere lakes and other navigable
waters.  An intermittent stream or nondescript drainage ditch in
the vicinity of a shooting range could be sufficient ground for a
crippling lawsuit.

Conclusion

Though Representative
Oberstar claims the Clean Water Restoration Act would simply restore
the original intent of the Clean Water Act, the reality is much
different.  By expanding the federal government's regulatory
reach beyond "navigable" waters to all "waters of the United States" -
including every prairie pothole, isolated pond, wetland and
intermittent stream under congressional authority - Oberstar's bill
would truly enter uncharted territory.  Moreover, by inviting
judicial review of all "activities affecting these waters," the bill
would open the door to a dizzying array of lawsuits that could
challenge virtually any activity, no matter how benign, that takes
place in or near any so-called "waters of the United
States."

The results could be
disastrous for sportsmen, our nation's frontline conservationists, who
since the inception of the Sport Fish and Wildlife Restoration
Programs over 75 years ago have contributed more than $10 billion for
wildlife conservation efforts through excise taxes on firearms,
ammunition, archery and fishing equipment.31  Hunters and
fishermen annually provide more than 80 percent of the funding for
most state fish and wildlife agencies,32 and in 2006 contributed
over $76 billion to the economy through expenditures related to their
sports.33

Congress should not
reward sportsmen with a measure that threatens to limit access to
fishing holes and hunting grounds, and to heavily regulate or ban the
use of boats, bullets, shot and tackle.

Footnotes:

1
U.S. General
Accounting Office, "Waters and Wetlands:  Corps of Engineers
Needs to Evaluate Its District Office Practices in Determining
Jurisdiction," GAO-04-297, page 3, February 2004, available for
download at http://www.gao.gov/new.items/d04297.pdf as of January 31,
2007.

2
Ibid. page
22.

3
Supreme Court of
the United States, "Solid Waste Agency of Northern Cook County
(SWANCC) v. United States Army Corps of Engineers Et Al.," No.
99-1178, January 9, 2001, available for download at
www.epa.gov/owow/wetlands/pdf/2001supremecourt.pdf as of January 31,
2008.

4
Supreme Court of
the United States, "Rapanos Et Ux., Et Al. v. United States," No.
04-1034, June 19, 2006, available for download at
www.epa.gov/owow/wetlands/pdf/Rapanos_SupremeCourt.pdf as of January
31, 2008.

5
U.S. Rep. James
Oberstar, "Oberstar Introduces Clean Water Legislation," May 22, 2007,
available at
http://www.oberstar.house.gov/index.asp?Type=B_PR&SEC={923D7A4F-1901-4602-9D76-450C13202B96}&DE={7F34C856-4D99-49BC-ACAC-677E49D8A52C}
as of January 31, 2008.

6
H.R. 2421, "Clean
Water Restoration Act of 2007," Section 4(3).

7
M. Reed Hopper,
"Hearing on:  Status of the Nation's Waters, Including Wetlands,
Under the Jurisdiction of the Federal Water Pollution Control Act,"
Testimony submitted to the United States House of Representatives
Committee on Transportation and Infrastructure Subcommittee on Water
Resources and Environment, page 6, July 17, 2007, available for
download at
http://transportation.house.gov/hearings/Testimony.aspx?TID=1541 as of
August 24, 2007.

8
Ibid. pp.
7-8.

9
T. Edward Nickens,
"The Land of a Million Ducks," Field and Stream, available at
http://www.fieldandstream.com/fieldstream/hunting/photogallery/article/0,13355,1545522_0,00.html
as of January 31, 2008.

10
U.S. Fish and
Wildlife Service, "2006 National Survey of Fishing, Hunting, and
Wildlife-Associated Recreation: State Overview," pages 9 and 13, July
2007, available for download at
http://wsfrprograms.fws.gov/Subpages/NationalSurvey/2006_Survey.htm as
of January 31, 2008..

11
U.S. Environmental
Protection Agency, "Wetland Regulatory Authority," available at
www.epa.gov/owow/wetlands/pdf/reg_authority_pr.pdf as of January 21,
2008.

12
Dr. Mitchell
Taylor, "U.S. Environmental Protection Agency, "Best Management
Practices for Lead at Outdoor Shooting Ranges," Chapter 1, page 1-9,
June 2005, available for download at
http://www.epa.gov/region2/waste/leadshot/download.htm as of January
31, 2008.

13
U.S. Fish and
Wildlife Service, "2006 National Survey of Fishing, Hunting, and
Wildlife-Associated Recreation: State Overview," pages 9 and 14, July
2007, available for download at
http://wsfrprograms.fws.gov/Subpages/NationalSurvey/2006_Survey.htm as
of January 31, 20087.

14
U.S. Fish and
Wildlife Service, "2006 National Survey of Fishing, Hunting, and
Wildlife-Associated Recreation," page 4, available for download at
http://wsfrprograms.fws.gov/Subpages/NationalSurvey/2006_Survey.htm as
of January 31, 2008.

15
Linda Greenhouse,
"Supreme Court Roundup; Tie Affirms Clean Water Act's Reach," The New
York Times, December 17, 2002, available at
http://query.nytimes.com/gst/fullpage.html?res=9D05E7D6173DF934A25751C1A9649C8B63
as of January 31, 2008.

16 Business
Wire, "Traditional Farming Practices at Risk in Clean Water Act Test
Case Filed Today in U.S. Supreme Court; Pacific Legal Foundation
Fights Movement to Make Farm Plow a 'Polluter,'" August 26, 2002,
available at
http://findarticles.com/p/articles/mi_m0EIN/is_2002_August_26/ai_90760165
as of January 31, 2008.

17 Texas
Wildlife Association, "Clean Water Restoration Act," TWA Fact Sheet,
available for download at
http://www.texas-wildlife.org/Water%20Reports.htm as of January 31,
2008.

18 U.S. Army
Corps of Engineers, New York District, "Public Notice Number:
2006-00161-YW," August 28, 2006, available for download at
www.nan.usace.army.mil/business/buslinks/regulat/pnotices/200600161.pdf
as of January 31, 2008.

19 H.R. 2421,
"Clean Water Restoration Act of 2007," Section 4(3).

20 U.S.
Environmental Protection Agency, "District Court Decision Vacating the
Federal Regulation Excluding Discharges Incidental to Normal Vessel
Operations from Clean Water Act Permitting as of September 30, 2008,"
April, 2007, available at
www.epa.gov/owow/invasive_species/VesselFactSheet.pdf as of January
31, 2008.

21 40 CFR
§122.3(a), available at
http://frwebgate.access.gpo.gov/cgi-bin/get-cfr.cgi?TITLE=40&PART=122&SECTION=3&YEAR=2000&TYPE=TEXT
as of January 31, 2008.

22 U.S.
Environmental Protection Agency, "District Court Decision Vacating the
Federal Regulation Excluding Discharges Incidental to Normal Vessel
Operations from Clean Water Act Permitting as of September 30, 2008,"
April, 2007, available at
www.epa.gov/owow/invasive_species/VesselFactSheet.pdf as of January
31, 2008.

23 Ibid.

24 Ibid.

25
U.S. Senator Mel
Martinez, "Martinez Introduces Recreational Boating Act," September
19, 2007, available at
http://martinez.senate.gov/public/index.cfm?FuseAction=PressReleases.View&ContentRecord_id=6310&Region_
id=0&Issue_id=0&CFID=4684404&CFTOKEN=99697288
as of January 31, 2008.

26
Long Island
Soundkeeper Fund, Inc. and New York Coastal Fishermen's Ass'n, Inc. v.
New York Athletic Club of the City of New York, 94 Civ. 0436 (RPP),
available at http://www.epa.gov/region2/waste/leadshot/lisfnyac.htm as
of January 31, 2008.

27
U.S. Environmental
Protection Agency, "Best Management Practices for Lead at Outdoor
Shooting Ranges," Chapter 1, page 1-9, June 2005, available for
download at http://www.epa.gov/region2/waste/leadshot/download.htm as
of January 31, 2008.

28 Ibid.
Chapter 1, pages 1-6.

29
Ibid.  Chapter
1, pages 1-9.

30
Lee Filas, "Feds
Sued Over N. Chicago Gun Range," Daily Herald, January 18, 2008,
available at http://dailyherald.com/story/?id=116150 as of January 31,
2008.

31
U.S. Fish and
Wildlife Service, "2006 National Survey of Fishing, Hunting, and
Wildlife-Associated Recreation," page vi, available for download at
http://wsfrprograms.fws.gov/Subpages/NationalSurvey/2006_Survey.htm as
of January 31, 2008.

32
Congressional
Sportsmen's Foundation, "Hunting and Fishing:  Bright Stars of
the American Economy," available for download at
http://www.nssf.org/07report/PR/releases.cfm as of January 31,
2008.

33
U.S. Fish and
Wildlife Service, "2006 National Survey of Fishing, Hunting, and
Wildlife-Associated Recreation," page 6, available for download at
http://wsfrprograms.fws.gov/Subpages/NationalSurvey/2006_Survey.htm as
of January 31, 2008

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