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Commentary: The truth about the Clean Water Restoration Act

April 16, 2008 By Reed Hopper, California Farm Bureau Federation

Clements farmer Brad Goehring has had extensive dealings with the Army Corps of Engineers relating to the Clean Water Act. The issue stems from efforts by Goehring to convert a parcel of grazing land into a vineyard. The corps issued a "cease and desist" order, claiming that the conversion was a violation of the Clean Water Act. The resulting controversy cost Goehring two years of production income plus countless hours of time and energy spent proving the parcel did not contain navigable intrastate waters of the United States.

Some claims are so outrageous that they must be answered. Like the claim that the misnamed "Clean Water Restoration Act" (HR2421/S1870) simply restores the "original intent" of Congress to regulate all waters in the United States.

This claim is belied by the actual text of the Clean Water Act--the best and only indication of congressional intent--that says Congress intends to protect the nation's waters by eliminating the discharge of pollutants into the "navigable waters" while protecting "the primary responsibilities and rights of the states" to eliminate pollution and determine the "development and use ... of land and water resources" locally.

Nowhere does the Clean Water Act state that Congress intends to regulate (i.e., federalize) all waters in the U.S. Instead, the act states just the opposite.

Another outrageous claim that must be answered is the patently dishonest argument that the implementing agencies have had a consistent interpretation of the Clean Water Act for more than 30 years recognizing congressional intent to regulate all waters in the U.S.

In truth, when the act was passed in 1972 (as the Federal Water Pollution Control Act), the Army Corps of Engineers asserted it could only regulate traditional navigable waters and not much else. The corps did not change its tune until 1975-76 when it adopted more expansive regulations. But even these regulations did not purport to cover all waters. They expressly excluded some wetlands and other waters, and still do. By 1986, the corps was only regulating wetlands adjacent to "navigable waters" and specifically excluded man-made drainage ditches.

Still later, the corps adopted the infamous "Migratory Bird Rule" which authorized for the first time federal control over any water body that could be used by migrating waterfowl--a rule that would not have been necessary if the corps had already claimed for federal control all waters in the U.S. A 2004 GAO (General Accounting Office) audit revealed the corps did not have a consistent jurisdictional standard and that government officials from the same office could not agree on the reach of the act. And twice the U.S. Supreme Court has chastised the corps for its ever-changing regulatory interpretations.

The fact is the agencies have never had a consistent view of federal jurisdiction under the Clean Water Act nor have they ever claimed in a formal rule that the act reaches to all intra- and interstate waters in the nation, as does the proposed "Clean Water Restoration Act."

Had the outrageous claims stopped there, they alone would have undermined any confidence that the "Restoration Act" was the modest return to reason the proponents suggest. But they don't stop there.

In recent testimony before a Senate subcommittee, we hear claims that the Supreme Court decisions in SWANCC and Rapanos limited federal authority to only "navigable waters and adjacent wetlands" which opens millions of acres of wetlands (and even our drinking water) to unregulated pollution. What nonsense! Even a casual reading of Rapanos reveals the lie.

Putting aside the fact that state and other federal laws protect local water quality, the federal guidelines issued by the corps and Environmental Protection Agency in response to Rapanos specifically deny that these decisions limit federal authority to "navigable waters and adjacent wetlands." If anything, the guidelines can be interpreted to expand agency jurisdiction.

If federal control over the nation's waters has decreased because of these Supreme Court decisions, someone should let the agencies know.

As for the claim that the "Restoration Act" will not substantially affect agriculture because "normal" silviculture, farming and ranching practices are exempt from federal regulation or that the act will not cover ornamental ponds or "the proverbial kitchen sink" because they are not mentioned in the act, think again. The corps interprets "normal" not to mean what is customary for the industry, but what is customary for that particular farm or ranch, essentially defining away the exemption. And, it is no comfort that the "Restoration Act" does not mention ornamental ponds or "the kitchen sink" when it clearly states it covers all waters. Ironically, in its relevant provisions, the Clean Water Act doesn't mention "wetlands" either.

(Reed Hopper is a principal attorney with the Pacific Legal Foundation who represented Rapanos in the U.S. Supreme Court. He may be contacted at mrh@pacificlegal.org.)

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