Reaction from the States: From Coast to Coast, Concerns over Federal Water Legislation Grows
After almost 40 years of environmental progress, members of Congress recently introduced legislation to dramatically change the Clean Water Act called America’s Commitment to Clean Water Act (ACCWA). By greatly expanding the federal government’s authority, the ACCWA could undermine the federal-state partnerships created by the Clean Water Act – potentially giving the federal government jurisdiction over all water in the United States, including interstate waterways and water on private property.
With Congress considering such a significant change to this historic and successful law, the ACCWA continues to gain attention from local, state and federal officials, along with editorial boards nationwide. Discussions are focusing on two, key areas: the significant expansion the federal government’s authority over water and the repercussions this bill would have on personal property rights.
Let’s look back on some of the latest reactions to this legislation and the concerns being voiced across the nation:
Minnesota
Dennis Fink, 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, recently wrote an opinion column featured in the Duluth News Tribune, which addressed preserving local governments’ authority under the Clean Water Act titled, “Commissioner’s view: Clean water bill ends local control”:
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.
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.
Virginia
Meanwhile on the East Coast, Virginia’s Free Lance-Star wrote an editorial piece entitled “Muddy Waters,” which echoed Commissioner Fink’s views:
Displeased with both decisions [in SWANCC and Rapanos], Rep. Jim Oberstar, D-Minn., has introduced a bill called the Clean Water Restoration Act. He says the aim of the bill, which would remove the word “navigable” from the Clean Water Act, is to return the law to its original intent.
Yet, as opponents point out, removing that one word would give the federal government jurisdiction over every stream, farm pond, swamp, and water-holding ditch in the country.
The simple solution: Let the states protect the nation’s waters, with federal backup. State government officials have a better appreciation of local needs than Beltway bureaucrats. With research and guidelines provided by Washington, they can do a good job. If they fail, they are answering to voters.
Protecting our waters is important–but so is protecting our Constitution. The Clean Water Act intentionally limited federal control to navigable waters. Steady as she goes.
Oregon
Earlier this month, the East Oregonian contributed to the steady drumbeat of editorials on the ACCWA by printing a similar piece titled, “Bill should be dead in the water:”
We can blame Rep. James Oberstar, D-Minn., who introduced the America’s Commitment to Clean Water Act. He aims to remove federal Clean Water Act requirements that regulated waterways be navigable. That would mean the government would control and regulate all inland waters on public and private lands.
More specifically, it would dramatically expand the Clean Water Act to give the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers control over all the water – and all the land – in the United States.
Walden correctly calls the bill an unprecedented federal takeover of Oregon water law and an attack on state water rights. The state has several layers of protection that anyone must go through before accessing water in a ditch or stream. We think it works well.
Having Oregonians making decisions about the use of Oregon’s waterways is far better than leaving the job to federal bureaucrats who don’t know a salmon from a sardine or the Columbia River from Columbia University.
Washington
U.S. Representative Doc Hastings from the nearby state of Washington recently penned an opinion column in the Othello Outlook that explains how by expanding the federal government’s authority through the Clean Water Act, ACCWA could add more layers of bureaucratic federal red tape, which could threaten jobs, hurt business and affect job growth:
Unfortunately, the legislation proposed last week removes the word “navigable” from the current definition of the Clean Water Act, effectively giving the federal government control over virtually all waters and making them subject to new and sweeping federal regulations and permitting. Current law allowing federal oversight of major waterways where boat navigation occurs makes sense, sending EPA bureaucrats into our backyards and onto our farms extends the tentacles of the federal government where they do not belong.
This bill is nothing more than another dramatic expansion of federal government control over Americans’ livelihoods and their private property. If this bill were to become law, every body of water in America would be at risk of job-killing federal regulation — from farmers’ irrigation canals to backyard ponds and streams to mud-puddles left by rainstorms. If passed, this legislation could cost thousands of jobs throughout central Washington and the rural western United States.
The bottom line is…this expansion of the Clean Water Act is another step by the federal government to take control of segments of our economy. Jobs and the very viability of farms and small businesses across rural America will be put at risk if this massive power grab succeeds.
After considering these editorials and columns from across the nation, it is apparent that citizens are increasingly concerned about this legislation giving the federal government jurisdiction over all waters. Clearly, states – instead of federal bureaucrats in Washington, D.C.—are best suited to regulate and control local water permitting and authority. Potentially forcing every family farmer and town supervisor from California to Virginia (and everywhere in between) to figure out whether they need permission from the federal government to treat their crops or repair a road is not a commonsense policy.
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.
Crapo: Feds Overreaching on Water Policy
Senator Mike Crapo (R-Idaho) , ranking member on the Environment and Public Works Subcommittee on Water and Wildlife, recently wrote the following opinion column about the Clean Water Restoration Act in Roll Call:
Americans rely on water for everything from individual survival to agriculture, commerce, transportation, recreation and energy. In the western United States, water is the lifeblood of many communities, and we take pride in our efforts and successes in managing it.
To the dismay of many people, there has been an aggressive push in recent years to drastically expand federal regulatory powers over water. This has been highly controversial, especially in my state of Idaho, where water is at the epicenter of policymaking and integral to our economic well-being. It is time for us to re-evaluate the direction of federal involvement.
Water quality protection in the United States is driven by two federal laws: the Federal Water Pollution Control Act (or Clean Water Act) governs pollution of the nation’s surface waters, while the Safe Drinking Water Act is the key federal law for protecting public water supplies from harmful contaminants. Both laws reserved significant enforcement and implementation responsibilities for state governments, which is a reflection of Congress’ intent for the federal government to partner with states and local communities to protect our waterways and water supplies. Yet the federal government and some Members of Congress appear to be losing sight of that vision.
There are numerous federal laws that are increasingly encroaching on state sovereignty with regard to water policy. One of the driving laws is the Federal Water Pollution Control Act Amendments of 1972, also known as the Clean Water Act. Recent efforts to modify the CWA may provide perhaps the greatest example of federal overreach on water policy, and the so-called Clean Water Restoration Act is example No. 1 for how some Members of Congress want to drastically expand the power of the federal government over surface waters by modifying our current water laws. The bill was introduced in response to two Supreme Court cases, in which the court found that the federal government exceeded its authorities under the CWA by regulating areas that had no direct connection to relatively permanent bodies of water.
Farmers in my state are particularly concerned that this legislation would allow the federal government to aggressively regulate farming practices under the Clean Water Act because their land is located near “any waters of the U.S.” I agree with their concerns. This legislation represents a drastic expansion of the ability of the federal government to regulate water sources, from intermittent streams to prairie potholes. State and local governments and private property owners are concerned, as am I.
After the Clean Water Restoration Act passed out of the Senate Environment and Public Works Committee on a partisan vote, the Environmental Protection Agency released its Clean Water Enforcement Action Plan. This plan concludes that states are not doing their part and that the federal government is not being aggressive enough in its enforcement actions. The EPA found that enforcement is a problem in 39 states and that “enforcement penalty calculation, documentation and collection” is lacking in 45 states. Instead of undertaking a serious initiative with states, the EPA considered a series of “escalation responses”; one option was to withdraw state-delegated authority to enforce Clean Water Act provisions and taking over those responsibilities altogether.
I oppose this plan because its enactment will create far more problems than it solves. There is a better way.
We all share a collective interest and responsibility to protect and improve our environment. That is why I have worked across the aisle for many years to promote bipartisan modifications and improvements to federal water quality protection laws and alternative energy development, as well as water, species and public lands conservation. But I also recognize that collaboration and effective partnerships between the federal government and its state and local partners and private property owners have the greatest potential for success. Inflexible mandates handed down by the federal government do not foster cooperation — they cause resentment.
On the other hand, I have led collaborative efforts between federal, state and local governments and stakeholder organizations to help address these issues by building consensus and working toward collaborative solutions that we can all support. If the federal government is going to get serious about addressing environmental challenges effectively, it must seek to achieve these worthwhile objectives through partnerships with others. It is not only possible — it is necessary. If we work together to craft solutions that work for a broad diversity of interests, we can find success.
From the AFBF: Next on the Government’s Agenda: Regulating Rainwater
By Bob Stallman, President, American Farm Bureau Federation
Some folks laugh at the notion of Uncle Sam reaching his hand literally into our backyards and regulating almost every drop of water. But, a bill in Congress would do just that. And if it passes, not just farmers and ranchers would be affected, but all land owners.
The Clean Water Restoration Act, or S. 787, gives the government the right to extend its reach to any body of water from farm ponds, to storm water retention basins, to roadside ditches, to desert washes, even to streets and gutters. The legislation leaves no water unregulated and could even impact standing rainwater in a dry area. Private property owners beware.
Put simply, this legislation would delete the term “navigable waters,” a key in determining whether regulations apply to water, from the Clean Water Act. Under this new law, areas that contain water only during a rain would be subject to full federal regulation. Further, not only would many areas not previously regulated require federal permits, those permits would be subject to challenge in federal court, delaying or halting these activities resulting in a huge impact on rural economies.
While it has “restoration” in its title, it does anything but. The Clean Water Restoration Act is not a restoration of the Clean Water Act at all. It is a means for activists to remove any bounds from the scope of Clean Water Act jurisdiction to extend the government’s regulatory reach. But, what the activists won’t tell you is that the Clean Water Act is working, and has been for the last 36 years.
The Clean Water Restoration Act is regulatory overkill. It is written to give the federal government control of structures such as drainage ditches, which are only wet after rainfall. Taking these changes one step further, it would likely give federal regulators the ability to control everyday farming activities in adjacent fields.
Hard-working farm families can’t afford, nor do they deserve, Uncle Sam’s hand reaching into their backyards, their fields or even their puddles of rainwater.
One Word Holds the Power
Navigable Waters vs. All Waters has set states in motion
It’s simple semantics: by changing the definition of one word in a sentence, the whole meaning can take new life.
Debate in Congress over the Clean Water Restoration Act (CWRA) is no different . Do you or do you not remove “navigable” from the original Clean Water Act and replace it with “all” ? Twenty-five years ago the Supreme Court recognized the term as including waters beyond where navigation actually occurs. Yet now some urge changing the Clean Water Act through the CWRA. These proponents say that this legislation will only “clarify” the Clean Water Act; however, the CWRA would actually expand federal power, granting Washington – not individual states and local communities – jurisdiction over “all” waters.
Since the ordinary meaning of the word “all” is “every,” “as much as possible,” or “every member or individual component,” changing the Clean Water Act in this manner could have huge implications for landowners, businesses, and local communities throughout the nation. Because courts could direct the Environmental Protection Agency and the U.S. Army Corps of Engineers to follow the plain language of the statute, this legislation could extend the federal government’s reach by directing the federal government to regulate all water located in each state, as well as all interstate waters.
But fortunately for us, several states are becoming increasingly vocal on the CWRA and are taking strides to educate local communities on the potentially negative effects changing one word would have on their businesses, communities and economies overall. Let’s look back on some recent responses to this possible change in legislation, and the concerns being voiced by legislators across the nation:
Colorado
Back in mid-December, CO State Sen. Ken Kester told Washington, DC thanks, but no thanks, in an op-ed placed to The Denver Post. “Colorado has some of the strongest, most effective water and land use preservation and protection regulations and laws in the nation,” Kester said. “Why are some in Washington so concerned about whether states like ours have the talent, treasure and technology in place to do a job we’ve effectively done for more than 100 years?”
Thanks to government entities such as the Colorado Division of Water Resources and non-governmental watchdogs like the Central Colorado Water Conservancy District, the state has substantial oversight in place to protect its own waterways using the people who are best suited to address water concerns in the state.
Montana
State Rep. Russell Bean echoed Sen. Kester’s sentiments in an op-ed of his own, seen in The Great Falls Tribune in January. “The federal government is significantly expanding its authority into several industries, and as Washington increases its authority, the rights of citizens and states continue to dwindle,” he says. As a state reliant on successful farming, Bean explains, “Under the CWRA, something as simple as a farmer or rancher filling a ditch on private property could require a federal permit that could take years to get approved and cost thousands of dollars.”
Texas
Recently State Representative Bill Callegari added to this drumbeat by posting this opinion column online, titled “Washington Shouldn’t Mess with Texas’ Water.” In this blog post, Callegari states: “Texas has a sovereign right, reinforced by more than a century’s worth of sound public policy, over the management and control its water resources…Unfortunately, several proposals percolating in Washington to expand federal authority over this nation’s waters threaten Texas’ right to manage and control its own water resources. The most immediate threat is entitled the Clean Water Restoration Act. The title of this bill is misleading: rather than “restore” the Clean Water Act, the bill does everything to expand it.”
Idaho
As of early March, the Idaho Senate has approved legislation that addresses their concerns with the CWRA. State Sen. Steve Bair voiced how changes made to the Clean Water Act could negatively impact the nation, and particularly his home state:
“It would be a financial burden on the state, one we can’t afford,” he said. “This could possibly be imposed on ditches and canals … That could affect agriculture adversely.”
Now is time for Americans to stand up together to protect our environment, economy and states’ rights. It is clear that as states learn more about the CWRA, they are responding loudly: the Clean Water Act should be preserved in its current form. It is obvious that states – not Washington bureaucrats – are best suited to regulate and control local water permitting and authority.
WAC Responds to The New York Times
WAC members responded to a recent New York Times article with the following LTE submission:
Dear Editor:
The recent article, “Rulings Restrict Clean Water Act, Hampering E.P.A,” does not accurately characterize the Waters Advocacy Coalition’s concern with pending legislation, the Clean Water Restoration Act (CWRA). The CWRA would amend the Clean Water Act to remove the word “navigable” and explicitly expand the federal government’s reach to “all interstate and intrastate waters” in the United States. Together, these changes would intrude on areas of traditional state and local jurisdiction and lead to other unintended and far-reaching consequences.
Our coalition works on a bipartisan basis and supports the Clean Water Act, which has helped create strong federal-state working partnerships and continues to improve the health of the nation’s surface waters and watersheds. We will continue to work with the EPA, the U.S. Army Corps of Engineers and states as they implement this law responsibly and effectively to ensure America’s waters are protected.
Sincerely,
The Waters Advocacy Coalition
Members of WAC include: American Farm Bureau Federation®; American Forest & Paper Association; American Iron and Steel Institute; American Road and Transportation Builders Association; Associated General Contractors of America; CropLife America; Edison Electric Institute; The Fertilizer Institute; Foundation for Environmental and Economic Progress; Industrial Minerals Association-North America; National Association of Home Builders; National Association of State Departments of Agriculture; National Cattlemen’s Beef Association; National Corn Growers Association; National Council of Farmer Cooperatives; National Mining Association; National Pork Producers Council; National Stone, Sand and Gravel Association; Public Lands Council; Responsible Industry for a Sound Environment; United Egg Producers
Richmond Times-Dispatch: Keep the Wording Of Clean Water Act
From the Richmond Times-Dispatch(March 7):
Editor, Times-Dispatch: As the federal government continues to expand its authority into new areas, including the automotive, banking, and health care industries, the rights and opportunities of states and their citizens continue to dwindle.
Congress is considering a bill that would limit Virginia’s authority to continue working with the EPA and the Army Corps of Engineers to manage our state’s water resources.
The Clean Water Restoration Act would remove the word “navigable” from the text of the Clean Water Act, giving the federal government authority over all U.S. waters. This seemingly minor change would drastically expand the government’s power and usurp authority from local, community, and state officials.
A one-size-fits-all approach that hands over power to distant federal bureaucrats would be a huge step in the wrong direction and would do little to ensure our nation’s water are clean, safe, secure, and protected.
The unintended consequences associated with this bill are many and would dramatically and adversely affect states, local governments, family farms, and private property owners in managing our water resources. Virginia would be negatively impacted by this legislation.
Virginia has demonstrated a strong capability to maintain and protect our waters. The state goes above and beyond federal water requirements in managing all of our wetlands and water. In fact, the state has more than 20 programs to monitor, assess, and improve waterways. Local and state officials aggressively enforce state environmental laws protecting resources.
The existing Clean Water Act is a commonsense law that has fostered a strong, working federal-state partnership and continues to improve America’s water quality and our environment. Leave current legislation alone. It allows state and federal governments to work together.
I urge Virginia’s congressional delegation to work to protect our state from this burdensome and intrusive expansion of federal authority.
Matthew Lohmann.
Clarke.
NAM on CWRA: A Watery, Regulatory Grave for Ownership Rights
Today the National Association of Manufacturers wrote about their concerns with the Clean Water Restoration Act through the following blog entry:
In a column today, “Erosion of ownership rights,” Quin Hillyer of The Washington Times identifies six different fronts (at least) where property rights are under assault. His first example has drawn outrage and opposition in farm country, but it’s worth attention from manufacturers and other business owners, too:
First, consider the moves in Congress to extend federal regulatory jurisdiction from “navigable” waters to “all interstate and intrastate waters of the United States.” Suddenly, if the so-called Clean Water Restoration Act passes, your backyard fish pond could be subject to the dictates of commissars from the Environmental Protection Agency. (See editorial on facing page.)
Enactment of the CWRA would surely spur massive court fights. The CWRA’s regulatory overreach would, by all logic, run afoul of the Constitution’s “interstate commerce clause.” How an “intrastate” water of the sort affected by this bill would qualify as “interstate” commerce is beyond normal reasoning.
In a speech to the State Chamber of Oklahoma on Thursday, NAM President John Engler also mentioned the legislation. From his prepared remarks*:
Since I mention the Clean Water Act, there’s also a bill that has already passed a Senate Committee that would drop the “navigable” to describe the bodies of water covered under the 1972 law. So the EPA would expand its regulatory authority to take over stock ponds, creeks, and perhaps even where water collects off the downspout from your warehouse.
Try to picture Oklahoma’s first settlers building the American dream under those conditions: 160 acres of land, a mule, and an EPA official hanging on the fence….and a fellow from the Corps of Engineers coming up over the rise.
The bill is S. 787 sponsored by Sen. Russell Feingold (D-WI).
* We now find out that Engler did not use the mule imagery. Poor mules. Always left out in the field.
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.
Clean Water Act ‘fix’ has major ramifications for Nevada
While the Congress continues to march forward with legislation to drastically change the Clean Water Act, many outside of Washington are sounding the alarm about the Clean Water Restoration Act (CWRA). Over the weekend, Liz Arnold of Eureka, Nevada wrote a column entitled “Clean Water Act ‘fix’ has major ramifications for state; Dropping one word could unleash the federal bureaucracy” in the Las Vegas Review Journal.
Arnold, who is a natural resources policy advocate involved in Western land and water issues, wrote this about the CWRA:
If signed into law, the Clean Water Act would be amended to exclude the term “navigable” from the line of the law that gives the EPA regulatory authority over all “navigable waters.” Take away that word and what is left is the EPA beginning to regulate all waters…Whether you are from north or south; for or against water pipelines to Las Vegas or other similar projects; a hay farmer, cattle rancher, casino owner, developer, small-business owner or a homeowner, your costs and regulatory headaches will rise.
But the impact that the EPA regulation over all waters of the United States will have on our state’s economy promises to be a lot more severe. A few thousand is a lot of money to farmers, ranchers, small businesses or miners given the already high cost of compliance and regulations of all sorts, especially in hard economic times.
As the Congress continues to debate the CWRA, Americans who are concerned about the CWRA and how it would institute sweeping new changes to the federal Clean Water Act should send a loud message to Congress that states and local authorities should continue to lead the regulation of land and water use, not the federal government.
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.
CWRA Could Stymie Shopping Center Projects
Today the International Council of Shopping Centers (ICSC), a member of the Waters Advocacy Coalition, shared their concerns with the Clean Water Restoration Act (CWRA):
The ICSC is concerned that the CWRA will drastically expand federal permitting authority and result in further litigation, which will cripple development of new shopping center projects and redevelopment and renovation of existing facilities. New shopping center developments today routinely occur on parcels of land appropriately zoned by local governments. The advance planning and coordination with state and local regulatory authorities means that shopping center developers can anticipate the time needed to secure necessary permits, including those required under existing Clean Water Act authority. Expansion of that authority under the CWRA will erase the certainty, wreaking havoc on accurate financing plans – ultimately killing the projects.
Existing shopping centers often need to be updated or expanded to accommodate changes in retailer needs. When those renovations are needed they may result in minor changes to manmade drainage ditches or expansion of environmental stormwater runoff controls, necessitating federal permits. The massive increase in the number of federal permits resulting from the CWRA will stymie those redevelopment projects, resulting in fewer consumer choices, the loss of jobs and a reduction in retail sales and tax revenues that flow from those sales.
