Commissioner’s view: Clean water bill ends local control
Dennis Fink of Duluth, a St. Louis County commissioner, recently wrote the following opinion column about the Clean Water Restoration Act/America’s Commitment to Clean Water Act in the Duluth News Tribune:
Ask anyone if clean, safe water is important and the overwhelming response will be an emphatic “YES!” Then ask who should be responsible for guaranteeing that clean, safe water is available and the answer most assuredly will be “everyone.” Specifically, that means every local, state and tribal unit of government, as well as the federal government. Herein lies the problem with U.S. Rep. Jim Oberstar’s new bill, America’s Commitment to the Clean Water Act, and its predecessor, the Clean Water Restoration Act.
“The new act, like its predecessor … simply looks to return the federal law to the way it was before the Supreme Court rulings,” the News Tribune wrote in its April 22 Our View editorial, “Clean Water Act: Clean it up already.” But nothing is simple in government. Not even this compact little bill that proposes nothing more than to change the words “navigable waters” to “waters of the United States” and defines this new term. Both sides of this debate agree “navigable waters” defines and limits the activities and actions of the federal government, specifically the Corps of Engineers and the EPA. And the courts have been acknowledging this same fact since 1973, starting only months after the October 1972 passage of the Clean Water Act.
Supporters of the new bill say the original intent of the Clean Water Act will be restored. That may be true as Oberstar remembers it, but congressional documentation disagrees. In 1972, Congress appeared frustrated that the Corps of Engineers was taking a too-narrow view of its authority over traditional navigable waters. Thus, Congress enacted the Clean Water Act, which contains the term “navigable waters” at least 84 times. The intent of the framers (including Oberstar) was to include greater numbers of waters that served as channels of interstate commerce, as long as they connected to land-borne modes of transportation. But a review of the legislative history reveals that, in 1972, Congress did not intend to sweep all intrastate features that did not support commercial traffic into the federal regulatory net, such as isolated waters, drainage ditches, erosional depressions, etc. But by 2001, the long arm of the Corps had reached far beyond these listed features.
Ever since its enactment, the Clean Water Act has been in the court system in some form or another. Most cases have centered on jurisdiction and not on clean water. A 2001 Supreme Court decision addressed the validity of the Migratory Bird Rule. This rule, written in 1985, established the primary theory used by federal agencies to assert their jurisdiction over isolated, intrastate waters. It stated that the U.S. Commerce Clause governed the activities of migratory birds. Therefore, any body of water that these birds could identify, in flight, was the jurisdiction of the Corps. The high court disagreed and concluded, “Permitting the Corps to claim federal jurisdiction over isolated ponds and mudflats falling within the ‘Migratory Bird Rule’ would result in a significant infringement on the state’s traditional and primary power of land and water use.” The court declared the bird rule illegal.
The 2005 Rapanos case similarly addressed federal jurisdiction. This time two cases were consolidated (Rapanos and Carabell), both following the same, familiar fact pattern: wetlands miles away from traditional navigable waters that drained through multiple ditches, culverts and creeks, which eventually flowed to traditional navigable waters. Again the court ruled that the Corps had reached well beyond its authority.
Oberstar asserts the America’s Commitment to the Clean Water Act will restore the federal government’s authority to a time prior to these two court cases. These cases are about the Corps overreaching its jurisdiction. To give them back that power takes away existing local control and places it in the hands of the federal government. I, for one, am against that.
Dennis Fink of Duluth is a St. Louis County commissioner, chairman of St. Louis County’s Environment and Natural Resource Committee and vice chairman of the National Association of County Officials’ Water Subcommittee. He was one of 10 county commissioners nationally who studied the effects of the Clean Water Restoration Act on local government as a member of a National Association of County Officials task force.
NSSGA Agrees: U.S. Cannot Afford a Broad Federal Expansion of the Clean Water Act
America’s quality of life depends on stone, sand and gravel; for these simple ingredients are the building blocks of the nation’s built environment. There are 100,000 men and women working in more than 10,000 quarries nationwide to produce the aggregate American needs. In years past nearly 3 billion tons of crushed stone, sand and gravel were produced annually to meet the need of our customers across America.
Our industry digs holes. Big holes. When it rains, water will find a way into these holes and our members work hard to manage the water on our property and make use of it so as to be good stewards of the environment, a good neighbor and to meet the needs of our customers. We will construct temporary retention ponds in areas where they would not normally occur to collect rainwater. We recycle from these man-made ponds: we draw water to wet down the property to reduce dust and to wash truck wheels to get rid of pebbles before trucks leave our property and travel on community roads. We also use the water to wash rock so that the cement or asphalt will stick to it better. After all, 80% of concrete and 94% of asphalt is stone, sand and gravel. Unfortunately, the Clean Water Restoration Act would likely make these activities illegal unless we enter into an expensive and time-consuming permitting process.
Some in Congress are considering a radical plan that will expand the power of the Clean Water Act by removing the term ‘navigable’ from the landmark law and redefining federal jurisdiction as “all intrastate and interstate waters and their tributaries.” The key word is all. Unfortunately, this broad expansion of federal jurisdictiondoes not differentiate between a man-made rock-washing pond in the middle of an active quarry and a river or major waterbody that is scientifically beneficial to the environment, helps with flood control, or provides habitat for animals, fish, flora and fauna. Navigable rivers/waterbodies are the business of the federal government rather than state, local or private decision-makers.
Making a man-made rock-washing pond federal jurisdiction is an expensive proposition. In 2002, a study found that an average individual Section 404 permit that our members would need to continue operating costs over $270,000 and takes more than 2 years to obtain.
Simple math – 10,000 operations seeking just one $270,000 permit means the aggregate industry alone is facing a $2.7 billion fee to continue operating and years of delays. And, it is very likely that multiple permits would be necessary to continue operating under the proposed legislation. The only people served by this are the environmental lawyers necessary to fill out the confusing federal forms. Without the federal permits quarry operators could face jail time for washing rock in ponds they built by harnessing the rain.
Where do aggregates go?
Average home requires 400 tons
Average school requires 15,000 tons
One mile of highway requires 38,000 tons
Currently, aggregate operations are permitted by local and state governments and get their social license to operate from the surrounding community. If this legislation becomes law, however, quarry owners will likely be required to get multiple costly federal permits to simply continue operating, adding another layer of regulation on an industry already regulated at the local, state and federal level.
During this time of economic turmoil, the aggregate industry is on track to see a decrease in production of over 20% this year. That is on top of a decrease in production over the last two years. Our companies are struggling to hang onto their employees in hopes that the economy turns around soon. If additional expensive permits are required to continue operating, some quarries may end up shuttering for good. For employees of quarries and their families, the prospects are truly worrisome.
We all want cleaner water for the next generation. Let’s not act so hastily, however, that we inadvertently throw out a good lawand replace it with one that doesn’t differentiate between a man-made rock-washing pond and a navigable waterbody that is of national concern due to how it helps the environment, flood control, or the habitat it provides for animals, fish, flora or fauna.
National Cattlemen’s Beef Association and Public Lands Council: America’s Farmers and Ranchers Oppose Federal Land Grab
The Clean Water Restoration Act (CWRA) would grant the federal government sweeping new regulatory authority to infringe on private-property rights. It amounts to nothing less than a giant federal land grab and would be disastrous to U.S. agriculture. A vote for this bill is a vote against agriculture.
This bill is unnecessary and unjustifiable, and sets a dangerous precedent towards the continuing erosion of our fundamental constitutional rights as American citizens. No compromise or exemption will cover all of the farm and ranch situations in the U.S. To protect agriculture, “navigable” must remain as the defining term for federal jurisdiction under the Clean Water Act.
Some environmentalists say that removing the word “navigable” would restore the original intent of Congress when it passed the Clean Water Act. This is far from the truth. The fact is, the word navigable is included in the CWA statute over 80 times. Since Congress does not usually include such important terms by accident, it is clear that navigability was the intended boundary of authority at the time of Clean Water Act passage. In addition, contrary to environmentalist claims, recent Supreme Court cases that define federal jurisdiction to include waters that are connected to navigable waters and those that have a “significant nexus” to navigable waters are an expansion of federal jurisdiction beyond the scope of Clean Water Act statutory authority to regulate navigable waters, not a contraction of that authority.
Under current law, the federal government has jurisdiction over ‘navigable waters of the United States.’ But by removing the word ‘navigable’ from the definition, the CWRA would expand federal regulatory control to unprecedented levels – essentially putting stock tanks, drainage ditches, and any puddle or water feature found on family farms and ranches across this country under the regulatory strong-arm of the federal government. This is an outright infringement on our Constitutional rights as Americans to own and manage property without undue interference from the government.
Ranchers appreciate the need to regulate navigable waters and wetlands that have true environmental value. We value clean water and depend on it for our livelihoods. The current Clean Water Act has been tremendously successful. In fact, it is arguably the most successful environmental law on the books. Millions of miles of rivers, lakes, streams, wetlands, estuaries, ponds, and other waters are cleaner and functioning appropriately thanks to the strong partnership that exists between the federal and state levels of government which allows states essential flexibility to do their own land- and water- use planning in a way that makes sense. We cannot allow Congress to take this flexibility away from the states.
All waters are not the same in terms of their environmental function and value, and they should not be regulated in the same way. It makes no sense to require a family farmer or rancher to get a permit from the Environmental Protection Agency (EPA) or U.S. Army Corps of Engineers before they can utilize their property or water their livestock. This is especially true given the fact the federal government is already struggling to handle a backlog of 15,000 to 20,000 existing permit requests.
Today, farmers and ranchers are using fewer natural resources to produce an abundant and affordable supply of safe, wholesome, nutritious food for our consumers, while working hard to protect the natural resources required to produce that food. As the world’s population increases require us to produce more and more food on less land, we need policies that protect farming and ranching. Needlessly imposing additional regulations and financial burdens on an already struggling farm economy makes no sense.
Edison Electric Institute: Protect the Federal-State Partnership Established under the Clean Water Act
Electric companies fully support the protection of the nation’s waters and the federal-state partnership established under the Clean Water Act that provides that protection. Water is crucial to the generation of electricity, and utilities spend millions of dollars every year to protect and improve water quality, including the restoration of wetlands. Our efforts in this area have not diminished since the Supreme Court in 2006 affirmed the jurisdictional partnership of the states and the federal government under the Act.
Proposed legislation – specifically Senate bill 787 as amended by the Senate Environment & Public Works Committee (EPW) on June 18 — will not restore, but vastly expand jurisdiction under the Clean Water Act. By replacing the term “navigable waters” with the newly defined term “waters of the United States,” the bill will eliminate the traditional basis for Clean Water Act jurisdiction under the Commerce Clause. This change will expand the scope of federal jurisdiction to include, per the new definition, “all interstate and intrastate water.”
The result is that the 37-year-old partnership between federal interests and states in applying the Act would be drawn to a close, with the practical result of federalizing every drop of water in the country, with consequences not yet well examined or understood.
The resulting new water treatment guidelines would require the installation of new systems to make sure water discharged into waste treatment systems meet water quality standards. The cost for such an effort could easily run into excess of tens of billions dollars without a commensurate environmental benefit. The costs for electric utilities could be prohibitive to the point that older plants would have to be closed and the cost of electricity for everyone would increase.
There is still much that we can do to improve our nation’s waters, but extending federal jurisdiction to every drop of water, however small or isolated, is not necessary to accomplish that task. Through updated regulations, the federal government can clarify the scope of federal jurisdiction. Then Congress could consider stepping in to address the protection of essential waters clearly identified as falling in between the protections established by the states and the federal government.
Miners Agree; CWRA Poses Consequences for Investments and Compliance with Existing Laws
The National Mining Association (NMA) respects that the supporters of this legislation consider their approach to be a clarification of congressional intent of the Clean Water Act’s jurisdictional reach. We disagree. Rather, these proposals would alter the statutory intent of the Act, unleashing a significant and substantial federal usurpation of the traditional powers of state and localities in land use and water resource management. For many businesses, including mining, changing the jurisdictional reach of the law poses considerable consequences for investments and compliance with existing laws.
Since coal and minerals are fixed in location, mining companies cannot go about finding, producing and supplying our economy without incurring water or land features where water may pass. As a result, NMA members have a long history of experience with questions about which waters fall within the purview of the Clean Water Act as well as the various permitting, performance standards and best practices that protect them.
The Clean Water Act is a comprehensive and complex statute. To determine congressional intent, one must start with the term “navigable waters,” which provides the statutory context for the obligation to obtain a permit before discharging a pollutant. In defining the term “navigable waters” as waters of the United States, it has been recognized that Congress intended to regulate at least some waters that do not meet the traditional understanding of the term. That does not, however, carry with it the notion that the term “navigable” has no effect at all on the meaning of waters of the United States. The Supreme Court’s decisions in both SWANCC and Rapanos confirm that the boundary is those waters with a “significant nexus” to traditionally navigable water.
When those bounds are reached does not leave a gap in protection. Where waters of the United States end, waters of the state still remain, and there is ample evidence the states are fully up to the task of protecting those resources. Indeed, the core policies informing the administration of the Clean Water Act include recognition of the states’ historic role in managing their water resources and their primary responsibility and rights to plan the development and use of land and water resources.
The proposed legislation alters fundamentally this framework. Deletion of the term “navigable waters” removes the historic understanding and constitutional bounds of federal regulation. No longer would waters need any sort of nexus or connection—let alone a significant one—with navigable, or even interstate, waters for the federal government to assert jurisdiction over any water or land over which water may pass. Moreover, removing “navigable” as the reference point eliminates the Commerce Clause power as the outer bounds of the federal government’s reach.
The existing permitting system is already overwhelmed, and the time and costs incurred to work through the permitting process are protracted and expensive. NMA supports the goals of the Clean Water Act to restore and maintain the integrity of our nation’s waters, but we do not believe changing the federal reach of that law is necessary to achieve those goals. A greater threat to the Clean Water Act’s goals may be a permitting system that is not capable of producing reasonable decisions in a reasonable timeframe—under mining much needed economic activity during a time when our economy is attempting to mount a fragile recovery.
Welcome to the Water Advocacy Coalition’s New Website
As you may know, the Clean Water Act has helped protect America’s waters and our environment for nearly 40 years. This commonsense legislation struck an appropriate balance between federal and state regulations. The Clean Water Act has helped foster strong partnerships between Washington, D.C. and state governments, helping to ensure America’s water is clean, responsibly managed, and safe for interstate commerce – a main pillar of the bill’s original intent.
Unfortunately, this 37 year-old partnership – which has given states and localities the flexibility to effectively manage their water resources – could be undermined.
Some in Congress are working to pass the Clean Water Restoration Act (CWRA). The CWRA – which its supporters say aims to “restore” and to “clarify” Congress’ original intent of the Clean Water Act – has already cleared a major legislative hurdle, gaining approval from the U.S. Senate Environment and Public Works Committee in June.
By adding the word “all” to the federal law – which currently regulates “navigable waters” – the strong federal-state partnership could be jeopardized. In fact, some legal experts believe that the CWRA could ultimately give the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers authority to regulate virtually all waters of the United States, regardless of whether or not it is on public or private land.
Major news outlets are taking notice of the threats the CWRA poses, too. Recently, the Grand Junction (CO) Sentinel wrote this about the CWRA in an editorial entitled “Navigate carefully in clean-water reform”, and even highlighted a quote from Senator Blanche Lincoln (D-Arkansas), who chairs the Senate Agriculture Committee, on the issue:
Unfortunately, a bill passed by a Senate Committee in June contains such problematic language that groups like the American Farm Bureau Federation and the National Association of Counties have good reason to fear that it would give federal agencies broad authority over not only lakes and rivers, but ponds and drainage ditches. There is also concern that it would allow agencies such as the Army Corps of Engineers and the EPA to control activities that might pollute these waters — everything from farming to land development.
“We certainly don’t want to give the EPA the broad authority that would allow them onto your farms to regulate ponds, ditches and gutters,” Sen. Blanche Lincoln, D-Ark., recently told a farm group.
Congress can avoid that by clearly defining the language of the Clean Water Act, not simply eliminating troublesome words and thereby opening up the possibility of even more confusion and more legal challenges.
Despite its good intentions, it’s clear that the one-size-fits-all federal regulatory approach called for by the CWRA is not the best solution to keeping our waters clean and safe. Our site, we hope, will provide you with the fact-based research and expert analysis needed to understand these complex issues.
Thanks for visiting. We hope you find our site and our educational materials helpful and informative.
