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New clean water bill should clarify federal law, not muddy it

by Dan Keppen, guest writer Herald and News 7/26/09
Clean water is something everyone can get behind, especially those who depend on water for their livelihoods – our farmers and ranchers here in the West.

    We in agriculture agree that the federal Clean Water Act has worked to make America’s waters clean, fishable, and swimmable for the past 30 years. What we do not agree with is the assumption that protection of clean water requires federal regulation of every mud puddle, low-lying swale or dry desert depression that could possibly hold rainwater.

    The extent of federal power under the Clean Water Act has been a contentious issue for decades. Many believe that the original act clearly limited federal control over our precious waters to water bodies that were tributary to the “navigable” streams and rivers that protected interstate commerce.

    Others, including most environmental organizations, believe the act imposed virtually no limitation on federal authority to regulate any water anywhere and any activity affecting water.

Limitations weren’t set firmly

    The U.S. Supreme Court considered this question twice, and ruled both times that the act does indeed limit the reach of federal regulators. However, the rulings did not clarify exactly where that limitation lay, resulting in some confusion about enforcement of the act. Environmental organizations have seized on that confusion as a reason for Congress to “clarify” and “restore” the act to match their interpretation of the law. That is what The Clean Water Restoration Act (S. 787) would do by removing the term “navigable” from the original law.

    If passed by the Congress and enacted into law, S. 787 would infinitely broaden the Clean Water Act, and the associated federal regulations and bureaucratic control over any waters in the U.S., whether in a mountain meadow or your backyard.

    Proponents of this bill insist the language would only follow the interpretation used by the U.S. Army Corps of Engineers and the Environmental Protection Agency prior to the controversial Supreme Court rulings.

    We at the Family Farm Alliance do not agree.

Proposal would rewrite the act

    Congress originally put the word “navigable” into the Clean Water Act to differentiate between those water bodies that would be regulated by the federal law and those that would not be. Removing that term does more than clarify the act. It rewrites it completely by erasing any reasonable limit on Washington’s regulatory authority. In light of this fundamental change to the act, the “compromise” amendment recently approved by a Senate Committee is nothing more than window dressing that provides no solid assurances for agriculture.

`    The Supreme Court cases that triggered this current debate focused on the question of whether small, isolated wetlands should be regulated like rivers and streams. Congress can easily clarify the law on that point without rewriting the Clean Water Act. But the organizations that are pushing the Clean Water Restoration Act want more than clarification. They want to further expand federal authority over local land-use decisions and the operations of irrigation districts and family farms. We believe that Congress should firmly reject that approach and focus instead on finding a more reasonable, workable solution.

About the author:

Dan Keppen of Klamath Falls is executive director of the Family Farm Alliance and has more than 20 years experience in Western water resources, including 10 years advocating for agriculture. The Family Farm Alliance is a non-profit organization dedicated to protecting and enhancing water supplies for farmers and ranchers in the 17 Western states.

    More information is at its Web site: www.familyfarmalliance.org.

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