CLEAN WATER ACT

NCBA Staff Contact: 

Stacey Satterlee, Director of Legislative Affairs
202-347-0228

ssatterlee@beef.org

Summary:

America’s cattle producers work each day out on the land. Along with caring for their animals, ranchers also care for the land where they graze cattle and work to protect the resources that help to sustain their cattle operations.

Current efforts in Congress seek to expand federal authority under the Clean Water Act and usurp local authority and defy private property rights.

On May 22, 2007, Rep James Oberstar (D-Minn.) introduced H.R. 2421, The Clean Water Restoration Act of 2007.  Companion legislation in the Senate, S. 1870, was introduced by Sen. Russ Feingold (D-Wisc.) on July 25, 2007.  These bills seek to expand federal jurisdiction of the Clean Water Act and redefine “Waters of the United States” by removing the requirement that such waters be “navigable” to be federally regulated.  NCBA is working to defeat these bills. 

Background:

When Congress created the Clean Water Act in 1972, it is clear that they intended to use the term “navigable.” The term preserves a critical balance of power with the States. Deleting the term “navigable” from the statute would call into question state responsibility for land and water decisions. Few, if any, waters would be controlled by the States. This action would actually inhibit the authority of state and local governments and private property owners to locally manage land and water resources. 

Passage of these bills would allow for every pond, stream, creek bed, drainage ditch, prairie pothole, drain tile or other wet spots that might contain water at any time of the year to fall under federal jurisdiction.

Oberstar says we need to “fix” the Clean Water Act because it was “damaged” by two U.S. Supreme Court rulings:

SWANCC v. Army Corps of Engineers:  In a 2001 Supreme Court case, SWANCC v. Army Corps of Engineers, the government argued that isolated ponds and puddles were actually “navigable waters,” and subjected to regulation, merely by the stopover of migratory birds. The Supreme Court struck down the Corps’ argument, and ruled that the government’s authority does not extend to isolated wetlands that are not adjacent to a traditional navigable waterway.

The court characterized the Corps’ expansive approach as pushing “the very limit of the congressional authority.” Yet, regulators still ignore the SWANCC ruling, and federal courts are split over the meaning of the word “adjacent.” According to the Pacific Legal Foundation, “Presently there is no legal reason why a puddle in your backyard is not covered by this law.”

Rapanos v. United States:  In June 2006, the Supreme Court decided the Rapanos v. United States case in which John Rapanos was facing a prison sentence and millions of dollars in fines for clearing his land and discharging fill material into waters on his property despite the waters being 20 miles away from the closest navigable water in Saginaw Bay. 

At issue were the following questions:  (1) Does the Clean Water Act reach wetlands that are neither navigable waters nor immediately adjacent to navigable waters; and (2) if so, does the Clean Water Act exceed Congress’ authority under the United States Constitution?

The Court decided that the Environmental Protection Agency (EPA) had exceeded its authority, but the justices could not agree on the proper legal standard to apply to determine federal jurisdictions, therefore, the court has remanded the case back to the lower courts for further proceedings.

Key Points:

• American agriculture is effectively regulated by a wide range of tough federal and state environmental laws, regulations and permitting requirements that help to protect the water resources on our lands.
• Current state and federal agricultural statutes and regulations effectively work together to cover clean water, soil conservation, waste containment and nutrient management plans.
• U.S. farmers and ranchers are responsible stewards of the land and our natural resources. Preserving a healthy, safe and clean environment for our animals and our families is key to our heritage and livelihood.
• These bills won’t make our water cleaner or better protect our environment! These bills represent a federal government power grab.