Clean Water Act's mission may expand
Senators back bill to remove ‘navigable’ from federal water law

Tim Hearden, 4/24/09 Capital Press

Could all water someday be controlled by the federal government?

It would under a bill introduced in the U.S. Senate that aims to apply Clean Water Act regulations to bodies of water whether or not they're considered navigable.

So says Don Parrish, senior director of regulatory relations for the American Farm Bureau Federation, which has concerns about the legislation.

"We believe that legislation is very much fatally flawed," said Parrish, who is based in Washington, D.C. "It's a rehash of bills that have been introduced in previous congresses. What it does is delete the term 'navigable,' which appears in the Clean Water Act 86 times."

The Farm Bureau is one of several ag-related organizations raising red flags over the so-called Clean Water Restoration Act, which was introduced April 2 by Sen. Russ Feingold, D-Wis.

The California Cattleman's Association opposes it on the grounds that changing the definition of applicable waters could lead to new restrictions on uses of groundwater, manmade ponds, wet farmland, treatment ponds and other wet areas, according to the organization's latest legislative bulletin.

Feingold introduced the legislation in response to two recent U.S. Supreme Court cases - Solid Waste Agency of Northern Cook County v. Army Corps of Engineers in 2001 and Rapanos vs. United States in 2006 - that reduced the scope of the Clean Water Act.

"Every day Congress fails to reaffirm Clean Water Act protections, more and more waters are stripped of their protections, jeo-pardizing the drinking water of millions of Americans as well as our nation's wildlife habitats, recreational pursuits, agricultural and industrial uses, and public health," Feingold said when he announced the bill's introduction.

The senator asserts the legislation fulfills President Barack Obama's campaign pledge to "restore" the Clean Water Act, which was enacted in 1972 to clean up and protect the nation's waters.

Environmental groups estimate that at least 20 million acres of wetlands and up to 60 percent of the nation's small streams are not currently covered under the Clean Water Act, according to a published report. The groups contend the loss of wetlands leads to increased flooding and other problems.

Feingold's bill is backed mainly by environmental and sportsmen's groups. But among the bill's supporters is the Wisconsin Farmers Union, whose president argues that it would protect farmers' livelihoods by protecting the water supply.

"This legislation is a prime example of economically sustainable environmental policy," Sue Beitlich, the organization's president, said in a statement.

"It will not force farmers to stop farming on wetlands that have been utilized for years nor alter the regulation of agricultural activities.

"WFU believes that wetlands that have not been farmed should not be used for any agricultural activities," she said. "And harming sensitive, ecologically important waterways ... is and never should be a viable option in agriculture. It's best to take a common-sense approach. Farm on what's been used as needed, and leave the rest alone."

The bill has 23 co-sponsors, including Sens. Barbara Boxer, D-Calif., Maria Cantwell, D-Wash., Jeff Merkley, D-Ore., and Ron Wyden, D-Ore.

Gary Walker, a National Cattlemen's Beef Association member who runs cattle on about 65,000 acres in Pueblo, Colo., said decisions about what types of water should fall under government protection should remain with the states.

"I'm always for keeping government as close to you as you can," Walker said. "Once it becomes federal, you'll never get anything done again because somebody always has a self-centered reason to block whatever you do."

States define their waters differently, said the Farm Bureau's Parrish.

For instance, Maine includes all waters in its definition except for those retained completely on the property of one person, while Minnesota's state waters include all surface and subsurface water except for that which is "not confined but spread out and diffuse over the land," Parrish said.

Feingold's bill would add another layer of bureaucracy that would oversee water use, and its jurisdiction could conceivably include ditches and erosion features, which farmers deal with regularly, Parrish said.

"If you're going to regulate an activity that affects water ... you tell me, is there any limit to what activity that we do as a human race that wouldn't affect waters, and is the federal government going to regulate all of it?" he said.

Parrish said he fears that farmers and ranchers could be hauled into court over their water use, and the legislation could affect decisions over how they use their land or where they build their homes, he said.

"This bill would get the federal government right in the middle of all of that with no limit," he said.

Staff writer Tim Hearden is based in Shasta Lake. E-mail: thearden@capitalpress.com