Removing ‘Navigable’ From CWA Creates Regulatory Quicksand


Legislation that would remove the word “navigable” from the Clean Water Act (CWA) and allow the Corps of Engineers and Environmental Protection Agency to regulate all interstate and intrastate waters could put farmers in “regulatory quicksand,” according to Missouri Farm Bureau President Charlie Kruse.

The Clean Water Restoration Act will make virtually any 'wet spot' in the country subject to federal regulatory authority.

Testifying on behalf of the American Farm Bureau Federation before the House Small Business Committee, Kruse, a Dexter, Mo. corn producer, said the bill leads to increased compliance costs, burdensome permit processes and extends the reach of the Clean Water Act to any body of water in the United States.

Kruse cited a number of cases that point out the hurdles farmers across the country will face if the Clean Water Restoration Act (S. 787) is approved. In one example, Kruse told the account of a small farmer in Minnesota who wanted to improve existing drainage on 11 acres of his land.

“USDA and the state did not consider his land a wetland, but the Corps did,” Kruse testified. “They told him he needed both a permit and 17.7 acres of mitigation. The cost of compliance — $77,000 – was more than the property was worth, and the farmer could not afford to comply.”

Kruse noted that expanding the scope of the Clean Water Act would sweep many agricultural and forestry activities under Clean Water Act regulation simply because such activities are conducted near some isolated ditch, swale, wash, erosion feature or ephemeral stream that would newly be deemed a “water of the United States.

“This would represent the most sweeping change to the law since its enactment in 1972,” Kruse testified.

“Farmers and ranchers are practical small business owners,” Kruse said. “We recognize and understand that words matter. It is clear to us that Congress intended to use the term ‘navigable waters’ when it passed the CWA in 1972 – or it would not be there. It is our view, and that of many legal experts, that deleting this form the 1972 act would fundamentally expand, not simply restore, the scope of areas that would be subject to federal regulation.”

According to AFBF, the Clean Water Restoration Act would give the federal government the right to regulate any body of water, from farm ponds to storm water retention basins to roadside ditches to desert washes.


Background

On Thursday, June 18, the Senate Environment and Public Works Committee voted, 12 to 7, to approve an amended version of S. 787, the Clean Water Restoration Act sponsored by Sen. Russ Feingold (D-Wisc).

Farm  Bureau continues to strongly oppose this legislation that grants sweeping new authority to regulators based upon the fullest extent of Congress’s legislative power. The bill’s removal of the word “navigable” from the Clean Water Act (CWA) does not, as the bill’s authors claim, simply restore the CWA’s “original intent” and jurisdiction to its status prior to the SWANCC and Rapanos Supreme Court decisions.

Instead, S.787, because of the removal of the word “navigable,” would open the door for unprecedented intrusion of the federal government on private property, enabling the federal government to consider virtually any water as a “water of the United States” and thus subject to federal jurisdiction.

The amendment is a stark contrast to the current law, which gives agencies the authority to regulate waters associated with “navigable waters” and is tied to the Commerce Clause. It defines “waters of the US” to mean –

In General – The term `waters of the United States’ means all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, and natural ponds, all tributaries of any of the above waters, and all impoundments of the forgoing.”

  1. The definition of waters of the US includes all “intrastate waters” including “intermittent streams” and “tributaries.” Without any limitation from Congress, these terms are broad enough to allow regulators and third-parties to sweep in the regulation of agricultural ditches.
  2. 2. Ephemeral streams (features that have flowing water only during and for a short duration after precipitation events), including upland ditches, would likely be treated as “tributaries of any of the above waters.
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2 responses to this post.

  1. […] Leave a Comment The Denver Post today published an opinion piece by CFB and other groups on the Clean Water Restoration Act. The piece rejects the broad and overreaching federal authority over water that the CWRA would […]

    Reply

  2. […] Water. Leave a Comment This week the Denver Post Editorial Board took the wrong position on the Clean Water Restoration Act. Despite urging by the Farm Bureau and other interests that the language of the bill was too broad […]

    Reply

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