Water law proposal alarms

Organization opposes bill that would redefine waters addressed

Cookson Beecher
Capital Press
November 30, 2007

Like other members of American-Agri Women, Arlene Kovash, who raises hay and cattle near Monmouth, Ore., with her husband, Paul, is opposed to proposed federal legislation that would extend the reach of the Clean Water Act.

The Clean Water Restoration Act of 2007, HR2421 and SB1870, would amend the Federal Water Pollution Control Act to clarify the federal government's reach in dealing with water pollution.

Of utmost concern to the ag women's organization is a change in definition within the legislation.

The term "navigable waters" would be replaced with "waters of the United States ."

According to the legislation, this would cover "all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing, to the fullest extent of these waters, or activities affecting these waters...."

In a resolution crafted by American-Agri Women during the organization's recent annual meeting in St. Paul , Minn. , members warn that replacing the word "navigable" with "waters of the United States " is a "massive red flag to all property owners and resource providers.

"If this passes, the federal government will have the authority to control all our water and activities affecting our water, thus pre-empting state and local government authority over land- and water-use decisions," according to a press release from the organization.

The organization claims the legislation would mean that "farmers would need permits for anything they do, including pesticide applications or even plowing."

Kovash fears the act would add layers of regulations on farm- and ranchland.

"A farmer could do something in the course of normal agricultural practices and then suddenly discover that he or she has violated a law or regulation," she said. "I don't want to sound like an alarmist, but who knows what the pseudo-environmentalists would do if they had a federal law like this at their disposal," she said.

First introduced in 2003, the legislation is a response to U.S. Supreme Court decisions that have eroded the jurisdiction of the Clean Water Act over isolated waters used by migratory birds and wetlands.

However, both bills specifically say they are not intended to affect the authority of the Army Corps of Engineers or the Environmental Protection Agency - in cases such as this:

n Discharges made up entirely of agricultural return flows.

n Discharges of dredged or fill materials resulting from normal farming, silviculture and ranching activities.

n Discharges of dredged or fill materials for the purpose of construction or maintenance of farm or stock ponds or irrigation ditches and maintenance of drainage ditches.

But in a commentary on the issue, Scott Campbell, chairman of the National Water Resources Associations Water Quality Task Force, warns that the legislation would unleash a torrent of litigation and conflicts because of the "expansive overreach" of the measure's language.

Both the House and Senate versions of the bills have been heard and were referred to committees more than four months ago, where they have languished.

Efforts to pass similar legislation during the past three congressional sessions failed after the bill never came up for floor debate after being referred to subcommittees.

Proponents of the bill - among them the Sierra Club, National Wildlife Federation and U.S. PIRG - believe the legislation is needed to restore the Clean Water Act's authority to what existed prior to the Supreme Court decisions and that it does not expand federal authority.

Dolly Lillis of Idaho, also a member of American-Agri Women, said the act opens the potential for "good ol' government boys to come onto your land."

Lillis is quick to say that the people who crafted the legislation probably had good intentions, she also believes "they just don't realize what it does to people who are making a living off the land."

"It sounds like it couldn't happen," she said, referring to fears of being put out of business because of overly stringent environmental regulations. "But we've seen things like this happen to landowners who rely on natural resources."

She pointed to the farming area in the Klamath watershed that felt the blow of restrictive environmental regulations.

"Whoever thought they'd shut farming down in that area?" she said. "The farmers had been there for generations."

Kovash, meanwhile, warns that this kind of legislation could spill over to non-agricultural lands - suburban lawns, for example.

"It could affect a lot of people," she said. "No one's thinking about what it could really mean.... Is there anything that doesn't affect water?"  

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