Revisions to the Clean Water Act

Recently Congressman James Oberstar introduced H.R. 5088, America’s Commitment to Clean Water Act (formerly known as the Clean Water Restoration Act). Congressman Oberstar has been trying to get a version of this bill through congress for years. This is a revision to the current federal regulation that deletes the term “navigable waters” from the Clean Water Act (CWA) and replaces it with “waters of the United States”. The National Association of Conservation Districts, NACD, is not supporting this bill because it is concerned about rural agricultural areas that may be impacted by changes in the law and subsequent changes in jurisdiction over drainage ditches, dry creek beds and other areas that occasionally convey water. These seasonal creeks, wetlands and drainage ditches should not be regulated on a federal basis, but should be overseen locally since water management is really a local issue. A federal regulation that would adequately and appropriately regulate the creek in my back yard would not be the appropriate tool for the 1,200 miles of canals in the California water distribution system. The central command and control model is inappropriate for the diverse issues associated with regulating and permitting water. Nor should the method the EPA proposes for the Chesapeake Bay States, presenting numeric target and mandating a regulatory scheme be put in place, be expanded to all the waters of the United States for all the chemicals of concern.

Congressman Oberstar’s bill has drawn support from environmental and conservation groups including Clean Water Action, the National Wildlife Federation and Trout Unlimited. Other groups including the NACD, American Farm Bureau Federation and the Waters Advocacy Coalition, which includes farming, cattle, building and manufacturing groups, oppose the bill. Various versions of this bill have been offered by Congressman Oberstar over the years. The current version of the bill has the same basic goal as previous versions, to protect all of the nation's waters using federal regulations. During the news conference in support of the bill it was high lighted that is different from prior versions. To try and get this bill through congress, this version grandfathers prior converted croplands, exempts waste treatment systems and excludes groundwater from the definition of “waters of the United States.” These changes were intended to overcome the objections to the 2007 version of the bill, HR 2421, federal regulation of ground water and reclaimed water, which are regulated by the States if at all. This regulation would ignore the importance of groundwater and protecting that valuable resource while regulating seasonal streams. About 21% of the freshwater used in the United States in 2000 came from groundwater sources; the other 79% came from surface water. Ground water is an important natural resource, especially in those parts of the country that don't have ample surface-water sources, such as the arid West. This regulation would ignore the more than one fifth of the fresh water supply that comes from groundwater while regulating all surface water.

Although the intent of these bills, to protect wetlands and the water resources of the United States is a laudable one, the current legislation will still have unintended consequences, including extending the enforcement of federal “numeric water quality limits” upstream and controlling on a federal level local land use decision making. The current bill’s exemptions do not exclude local drains, streets, curbs and gutters from federal pollutant limits. This would result in federal regulation of rural, urban and suburban runoff, eliminating local control of decisions on land use and water supply to the States and may possibly interfere with water rights. No longer will the Clean Water Act be limited to the historic federal concern with navigable waters and Commerce Clause authority under the Constitution. Instead, this proposal will expand federal control over, puddle, moist land area, man-made waterway, storage facility, conveyance system, holding facility, or re-regulating reservoirs.