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.
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.
AF&PA: CWRA Will Impose Costs on Manufacturers with Little Environmental Benefit
Today the American Forest and Paper Association (AF&PA), a member of the Waters Advocacy Coalition, shared their concerns with the Clean Water Restoration Act (CWRA):
Papermakers are innovators in water quality and long ago many began treating their wastewater via processes that mimic the natural water-cleansing that occurs when water moves through wetlands. Once treated and in compliance with water quality standards this water is returned to the water cycle. However, this successful process could come to a screeching halt under the proposed changes to the Clean Water Act currently being pushed in Congress, the CWRA.
Water treatment processes utilized by the paper industry have become so sophisticated that their discharged water typically has no effect on downstream aquatic life. This was confirmed by a recently-released study by the independent National Council for Air and Stream Improvement which spent a decade examining water quality and aquatic life in four representative streams around the country with discharges from papermaking facilities. The study found that other point sources or naturally-occurring changes often were the cause of any changes that were detected. The results of this peer-reviewed study represent an important milestone for an industry that has worked hard over the past several decades to successfully implement sustainable practices.
Critical to the ongoing successful improvement in water treatment processes by papermakers is the ability to use water treatment ponds that are kept separate from waterways and streams and in which water purification can occur safely without impacting water quality or aquatic life in those waterways. The CWRA would, ironically, subject these separated water treatment ponds to the same high water quality standards as the waterways the treatment ponds are working to protect. In other words, the water in the water treatment system would have to meet water quality standards, which completely negates the purpose of the treatment system itself.
Instead of embracing the existing process as a key component of water quality protection, the legislation recently passed by the Senate Environment and Public Works Committee would expand federal authority rather than actually improving water quality enforcement.
Forest landowners require regulatory certainty for water quality compliance and the CWRA creates ambiguity about which activities require a permit. If all water on private land falls under federal jurisdiction, then normal forestry operations could be greatly encumbered with new regulatory burdens with little or no improvement in the environment. Similarly, requiring permits for ditches, culverts, and log ponds imposes costs on manufacturers with little environmental benefit.
The United States forest products industry is committed to protecting and restoring America’s wetland and water resources and we support constructive measures to achieve these goals. Given the many unintended consequences of this legislation – the possibility of overturning state prerogatives, confusing both the agencies and the regulated community by its broad approach and producing endless litigation – AF&PA does not believe that the CWRA is the solution to achieve these goals.
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.
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.
