Jun 17 2009

Water rights in clean water act?

Published by at 8:45 pm under Clean Water Act



A battle shaping up in Congress through May heated in June, over proposed revisions to the Clean Water Act, changes that critics warned might strip from states much of their current control over water rights.

The measure, Senate 787, is described as “A bill to amend the Federal Water Pollution Control Act to clarify the jurisdiction of the United States over waters of the United States.” Lead sponsor is Wisconsin Senator Russ Feingold, and it has 24 co-sponsors – half the chamber and enough with the vice-president’s vote to clear the Senate.

On May 21, Feingold said he had obtained support for the measure from the Obama Administration.

But critics in the Senate, including some western Republicans, warned that the measure as written could amount to a major federal usurpation of water right regulation which until now has been handled by the states. Idaho Senator Mike Crapo said he felt strongly enough about it to place a hold on the measure or take other steps to block it.

Feingold describes the bill in this way: “The Clean Water Restoration Act would ensure protections for rivers, streams and wetlands which were long protected under the Clean Water Act, but are now in jeopardy of losing protections as a result of two recent Supreme Court cases. Since those decisions, more and more waters continue to be stripped of protections previously provided by the CWA, which became law in 1972.”
Critics, however, are concerned that by removing a reference to “navigable” waters, the bill would give to federal control regulatory authority over water that states long have assumed.

? On Feingold’s web site

? More information about the bill

The anti view from the Heritage Foundation:

For years, the 1972 Clean Water Act has been misused in the name of protecting Americas waters and wetlands. The statute’s original limitation that its key provisions only apply to navigable waters was largely ignored. Instead, the law was broadly applied to a wide variety of circumstances, including remote and inconsequential drainage ditches or temporary puddles and even to completely dry land.
The statute’s complex and costly provisions interfered with the economic use of the lands it encompassed, including farming and ranching operations, construction of housing and other buildings, and domestic oil and gas production.

Fortunately, two Supreme Court decisions, Solid Waste Agency of Northern Cook County v. United States in 2001, and Rapanos v. United States in 2006 partially reined in these excesses.

Now, the CWRA seeks to overturn these Supreme Court decisions and make the statute more expansive than ever. In fact, it would turn the Clean Water Act into what some analysts believe to be the most dangerous federal intrusion on private property rights in existence. First, it seeks to remove the limitation that the statute only apply to navigable waters and apply it to all waters of the United States. Then it seeks to broadly define such waters as not just “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),” but also “mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds….” Yes, prairie potholes. Note also that the CWRA makes clear that intrastate as well as interstate waters are the purview of the feds.

The CWRA is an invitation for federal regulators (or environmental organizations filing lawsuits) to shut down any use of land that they don’t like so long as there is a little water somewhere in the vicinity. If the past is any guide, this law will be used to stop a tremendous amount of economic activity. Though not as far-reaching as Waxman Markey, the CWRA would be a serious blow to the rural economy, not to mention private property rights.

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