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June 17, 2009

Clean Water Restoration Act Gains Detractors

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U.S.

Water

Advocacy 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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Reader Comments

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.

John
Rumpler | June
18th, 2009

John Rumpler is Senior Attorney for Environment America, a network of
environmental advocacy organizations in 27 states.

John
Rumpler | June
18th, 2009

Just wait until some greens don’t like the puddles in your driveway. lawsuits
for everyone!!!!

Just Blaze | June
29th, 2009

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).

Taylor Houston | August
19th, 2009

Who wrote this article and what are his/her credentials

Adam | September
24th, 2009

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.

Dan
Puroclean | March
3rd, 2010

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