NCBA’s responses to Senator Wyden’s questions regarding the Clean Water Restoration Act of 2007

 Wyden Question 1:

Response:

 Undoubtedly, the Clean Water Restoration Act (S. 1870) would expand Federal jurisdiction: by removing the word ‘navigable’ the CWRA would by itself expand the definition and would allow courts to interpret what ‘waters of the United States’ means. 

Since 1870, it has been well settled law that Congress’ authority to regulate waterways is limited to regulating waters that could carry foreign or interstate commerce under the Commerce Clause of the U.S. Constitution.  The Daniel Ball, 77 U.S. (10 Wall.) 557, 563 (1870).  Thus, until recently, only waters that were navigable in fact, had been historically navigable, or were susceptible to navigation with reasonable improvement fell under federal jurisdiction, thereby excluding many wetlands. 39 Fed. Reg. 6113 (1974).  It was not until 1968 that environmental and navigational factors began to be considered when determining federal jurisdiction. 33 CFR §209.120 (superseded by 72 Fed. Reg. 37, 133 (1977)).

There can be no clearer indication of Congressional intent with regard to the limits of federal jurisdiction than the fact that Congress used the term “navigable” repeatedly when establishing those limits and drafting and passing the CWA in 1972.  If the term “navigable” meant nothing, the term would not have been used throughout the law.  It is clear that Congress did not intend the CWA to regulate all waters of the United States.

 Wyden Question 2:

Response:

 States jurisdiction, from the Clean Water Act of 1972:

“It is the policy of Congress to recognize, preserve, and protect the primary responsibilities of States to prevent, reduce and eliminate pollution, to plan the development and use (including restoration, preservation and enhancement) of land and water resources…”

CWA 101(b).  It is this provision and the use of the word “navigable” throughout the CWA to describe federal jurisdiction that recognizes an essential dividing line between federal and state jurisdiction.                  

Potential affects for Cattlemen/States:

 States have very strict programs in place to protect their waters.  To remove the word “navigable” from the CWA would take state authority away and give it to the federal government, violate the U.S. Constitution, contravene expressed Congressional intent, and subject cattle producers to unprecedented and unwarranted federal regulatory intrusion into their private business operations.

Two core provisions of the CWA which directly affect cattle producers are: 33 U.S.C. 404, the program which authorizes the issuance of permits for the discharge of dredged or fill material to waters of the U.S., and 33 U.S.C. 402, the National Pollutant Discharge Elimination System (NPDES) program which authorizes the issuance of permits to discharge pollutants from point sources to waters of the U.S.  Each of these provisions is discussed below.

Counties position on CWRA, from NACo:

 From National Association of Counties (NACo) statement at the Senate Environment and Public Works Committee Hearing, April 9, 2008:

“One of the basic tenets of NACo philosophy centers on a state and local governments' responsibility to oversee state and local planning policies, processes and decisions. Counties are responsible for a wide range of activities designed to protect the health and well-being of their citizens. It is very likely that CWR may preempt some of these ingrained local land use decisions.

While a broad interpretation would affect counties on many different levels, no more so than in the Army Corps of Engineers 404 permit program. There could be a limitless possibility of future federal permits required to do things such as construct a new driveway or simply cross a swale on an individual's property. Counties are responsible for a number of manmade ditches, such as culverts, storm channels and road-side ditches. Currently, they face tremendous challenges getting permits approved in a timely manner.”

 Wyden Question 3:

 Response:

 There is no scientific definition of “waters of the United States” and thus there is no way of knowing who would be protected from regulation. 

Carol Browner is no longer at the EPA and thus will not make decisions regarding the rule making process, should the CWRA become law.  Ms. Browner insisting the definition of “waters of the United States” will protect the farmers, ranchers, and concerned parties from new permitting burdens does not mean EPA in future administrations will interpret “waters of the US” the same way or the courts for that matter.  

Again, the original intent of the Clean Water Act of 1972 is clear that only ‘navigable’ waters should be regulated by the Federal Government.  This was held up by the Supreme Court in Rapanos v. United States, 126 S. Ct. 2208 (2006).   In a plurality opinion, four Justices agreed that waters of the United States covers “relatively permanent, standing or continuously flowing bodies of water” that are connected to traditional navigable waters, as well as wetlands with a continuous surface connection to such water bodies. Id. at 2225-2227.  Justice Kennedy, concurring, determined that jurisdiction should include wetlands that “possess a ‘significant nexus’ to waters that are or were navigable in fact or that could reasonably be so made,” and “wetlands adjacent to navigable-in-fact waters.” Id. at 2248.

Since 1870 it has been settled law that under the commerce clause of the constitution, navigable waters could be regulated by the Federal Government.  

 Wyden Question 4:

 Response:

 There are no exemptions in the CWRA.  The only proposed exemption that deals with ranchers is one that exempts prior converted cropland.  This in no way covers all ranchers, and does not include land such as grazing land pastures or rangeland. 

Wyden Question 5:

Response:

See above, question 2 answer and:

From NACo statement:

Intrastate Waters in the CWRA

We have concerns with several phrases within the bill, beyond the "navigability" issue. First, is the classification of "intrastate" waters as "waters of the U.S." with CWRA. This is problematic since historically, states have been responsible for setting water quality standards in intrastate waters.

We believe CWR would impose significant new administrative requirements on state and local governments. This means that the states would be required to expand their current water quality designations to include all waters within the state, not just high priority waters. It would change reporting and attainment standards, including preparation of total maximum daily loads and allocations where necessary.

Wyden Question 6:

The ambiguous nature of this new Act and how it will be interpreted could have a definite negative impact on the amount of water that could be diverted to storage impoundments and Adjudicated Water Rights that are so critical to our Western irrigation needs. Keep in mind that this would hurt aquatic life, recreational opportunities, and late season stream flow, just to name a few of the perils this bill contains.

 A few more points:

• CWA 1972 has arguably been the most successful environmental protection law ever passed, why change it now?

• The Federal Government cannot afford to regulate all waters of the US, and State and Local efforts under way and that have been in place for years would probably be circumvented by the federal government if CWRA were to become law.

• The CWRA substantially intrudes on our water rights. Not all water/wet areas are equally environmentally important; this bill would not distinguish between different waters. 

• It is considered by some as the largest Federal land-grab in the history of the United States

Another major concern, “activities affecting”:

• There is no definition of “activities” in the CWRA, who will make the final decision on what activities affect certain water.  Ranchers will no longer have the certainty of where they can run cattle and what activities may or may not need a permit.

• The reference to all “intrastate waters” and “activities affecting” would allow the U.S. Environmental Protection Agency and the Army Corps of Engineers to exercise broad regulatory authority over all intrastate waters, including, for example, waters now considered entirely under state jurisdiction. Virtually every body of water including irrigation ditches, drains, prairie potholes, streams, ponds, and other temporarily wet areas, would fall under the purview of the federal government. Considerable resources would be needed to expand and defend the federal regulatory program, exacerbating an existing Clean Water Act funding gap and leading to extensive permitting and court battles.

From the CWRA bill language:

`(24) WATERS OF THE UNITED STATES- 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 and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing, to the fullest extent that these waters, or activities affecting these waters, are subject to the legislative power of Congress under the Constitution.'.