Oppose Changes to the Clean Water Act

Background:

Legislation introduced in the 110th Congress would have deleted the term “navigable” from the CWA. If the legislation were enacted, it would fundamentally change the law by completely severing the CWA from the commerce clause of the U.S. Constitution. Such a step would significantly change the intent of Congress when it enacted the CWA and result in an unprecedented expansion of the CWA .Because the CWA already regulates truly navigable waters and streams with both permanent and seasonal flows, the enactment of the Clean Water Restoration Act (CWRA) would lead to the broadest possible interpretation of the CWA. Proponents have asserted that the CWRA “restores” the original intent of the CWA and “clarifies” CWA jurisdiction. However, it does neither. The CWRA would:

Grant the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) jurisdiction over all “intrastate waters” – essentially all wet areas within a state, including groundwater, ditches, pipes, streets, municipal storm drains, gutters, desert features and farmland.
Grant EPA and the Corps authority over all “activities affecting these waters” (private or public), regardless of whether the activity is occurring in water or whether the activity actually adds a pollutant to the water. Whether or not an activity occurred in water, the fact that the activity might affect water would allow federal regulation under the proposal.
Change the original intent of Congress in enacting the CWA by replacing its link to the commerce clause with the full “legislative power of Congress under the Constitution.”
Eliminate the existing regulatory exclusions for prior converted cropland and waste treatment systems.

In sum, the proposed amendment expands the CWA in an unprecedented manner. Never before has Congress so broadly defined federal jurisdiction as extending to “all intrastate waters,” given federal agencies the authority to regulate “activities affecting” water bodies, or granted sweeping authority to regulate to the fullest extent of Congress’s legislative power. Thus, rather than “restoring” the CWA, the proposed definition of “waters of the United States” would fundamentally alter and expand the CWA’s regulatory framework.

Status:

Senator Russ Feingold (D-Wis.) has reintroduced the Clean Water Restoration Act, S.787, in the Senate and we anticipate Rep. James Oberstar (D- Minn.) will soon re-introduce a companion bill in the House. Congress should not expand the jurisdictional reach of the CWA, and we urge all members of Congress to oppose legislation that seeks to delete the word ‘navigable’ from the CWA and regulate all intrastate, non-navigable waters.

Clean Water Restoration Act Update:

The Senate Environment and Public Works Committee has scheduled a mark-up of the Clean Water Restoration Act (CWRA), S. 787, for Thursday, June 18, 2009 at 10:00 a.m.

S. 787 would declare that all waters in the United States would be subject to Federal EPA jurisdiction. That means federal roadblocks in local storm water management, delays in development and maintenance of local infrastructure, problems for those who produce food, fiber, and fuel, and those who build and maintain roads, construct homes and supply energy.

Neither Senator Udall nor Senator Bennet serve on the Senate Environment and Public Works Committee, but both have stated their opposition to the legislation as is. However, neither has given indication as to the type of language they would support when it is time for a vote on the Senate floor. If S. 787 is approved by the committee, the fight will then occur on the floor of the Senate. It is critical to let Senators Udall and Bennet know that they may be facing a very difficult vote if this bill gets out of committee!

Please continue phone calls and letters in opposition to this bill!