Clean Water Act, Take Two (Posted By Gary Cutrer)

What started as good intentions to clean up pollution in rivers, lakes, streams and harbors in the United States eventually became, landowner rights groups say, somewhat of a bureaucratic club to knock landowners and industry over the head for minor infractions or for reasonable small and questionable pollution violations. The Clean Water Act was drawn up and enacted in the 1972 zeal to clean up the environment — the back to nature and hippy inspired granddaddy of today’s Green movement.

Originally the Act was to regulate discharges into “navigable waters.” But in Rapanos v. United States[Case], the Supreme Court clarified that the term “waters of the United States . . .”

includes only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams, … oceans, rivers, [and] lakes.’

The Army Corps of Engineers and the Environmental Protection Agency are the two bodies that make regulations regarding the Act’s execution and directives. Some environmentalists recently decided that the existing Clean Water Act had been weakened by the Supreme Court case above and by a 2001 case, plus more than 140  individual cases in which the courts took the side of the alleged polluters or violators of agency rules.

An EPA memo went out in 2008 from the agency’s Office of Enforcement and Compliance Assurance, opining that the country’s waters were not under full protection due in part because of EPA’s and the Corps of Engineer’s more relaxed posture of Water Act enforcement during recent years, especially during the Bush administration. In other words, it’s Bush’s fault.

The factor in most of the individual cases decided against the EPA and Army Corps of Engineers was the question of jurisdiction, mainly due to the Rapanos decision–non-navigable waters were not covered under the Act. So, the wetlands, playa lakes, dry lake beds, barrow ditches and mud puddles containing frogs’ eggs that the environmentalists want to have control over, were not in the agencies’ jurisdictions.

Now comes the Clean Water Restoration Act — Clean Water Act, Take Two. The environmental lobby and many legislators are backing a new bill aimed at correcting what they see as the problem. They want the Clean Water Act’s language amended so that the bureaucrats would have jurisdiction over all “waters of the United States,” not just navigable waters that a court delcares to be navigable waters.

It is true that the original Clean Water Act, or Federal Water Pollution Control Act, has done a lot of good in cleaning up egregious pollution of waterways. But it did harm as well in the long run, in that it empowered yet another Federal oversight on individual rights and freedoms, namely property rights. If the Clean Water Restoration Act bill is passed into law, it will amend the Federal Water Pollution Control Act.  In the words of the legislation, introduced by Russ Feingold, D-Wisconsin, et al, this would “clarify the jurisdiction of the United States over waters of the United States.” As a result of its passage and enactment, a decision to backfill a pond or swampy area on your property possibly could be subject to the scrutiny of the EPA or Corps of Engineers. Such an undertaking might even require those agencies’ prior permission.

With all the government bureaucratic intrusion into what we do with our own property and incomes, do we really need yet another pair of eyes over our shoulder, telling us what we can and cannot do regarding water resources on our own land?

The lines have been drawn as to who supports and opposes the Restoration Act bill in its current form. Generally, ranchers, farmers and other agriculture interests oppose the bill. Environmentalists and many people who live in urban areas who don’t see regulation of all waters as a problem support the bill.

During Congress’ summer break, Sen. John Cornyn, R-Texas, visited San Angelo to hold a roundtable discussion and to hear concerns from constituents. The meeting room at the Visitor’s Center in town was filled to capacity with area ranchers, farmers and business leaders who all were concerned and opposed to the bill in its present form. They specifically wanted to let Sen. Cornyn know they wanted the language of the final bill so that the word “navigable” preceeded the words “waters of the United States.”

The fate of the Clean Water Restoration Act bill is still in question.

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