wetlands

Senators Act on Clean Water Restoration Act

by RJ Smith on June 19, 2009

in Agriculture, Environment, Natural Resources

Yesterday, in a mere one hour and seventeen minutes, the Senate Environment and Public Works Committee sailed through S. 787—the Clean Water Restoration Act (CWRA). This bill would remove the word “navigable” from the Clean Water Act, expanding the federal regulatory power under the Clean Water Act (CWA) to include such things as puddles on farms and other private property around the nation. For background on this legislation see my prior blog post, this site, and this press blog. Former CEI staffer, Jonathan Adler, also delivered very good testimony on these issues as well last year.

The final bill was a slightly modified alternative amendment worked out yesterday by Sens. Max Baucus (D-Mt.), Amy Klobuchar (D-Minn.), and Barbara Boxer (D-Calif.) This Baucus “compromise” is largely window dressing, maintaining the existing Clean Water Act exemptions for some agricultural activities in the new CWRA. This was to lure farmers into supporting the CWRA. At best it might have gained them one farm organization.

Senators James Inhofe (R-Okla.), David Vitter (R-La.) and John Barrasso (R-Wyo.) were heroic in their efforts to defend private property rights and states’ water rights and prevent most of the American land and water from effectively being federalized/nationalized.

Inhofe said in his opening statement that the bill represents a dagger aimed right at the heart of rural America, but that there was no way to stop it in committee. He vowed a very robust effort to defeat it on the floor.

Vitter submitted two amendments. One would allow the president to override the CWRA in the case of natural disasters such as hurricanes, so that recovery efforts would not be delayed or halted. Boxer said public health would be compromised if exemptions were provided. Senator Thomas Carper (D-Del.) said Vitter’s amendment would undermine the intent of the bill.

Boxer and Carper argued they weren’t expanding any government authority–simply returning to the authority of the CWA as it was prior to the SWANCC and Rapanos Supreme Court decisions. Boxer repeated that theme over and over. For more information on these decisions see this paper of Jonathan Adler.

Vitter responded that it restores nothing that was ever in the CWA–instead it returns to the vastly expansive definition of navigable which federal bureaucrats had achieved in order to usurp powers not granted to the federal government (such as the migratory bird rule, the “glancing goose test”), which was why the Supreme Court had to step in and point out that navigable meant navigable.

It was defeated on a voice vote.

Vitter offered another amendment to include language that the use of mosquito control pesticides would never be required to obtain permits under the CWRA. This provision would allow that mosquito control efforts to prevent control of diseases such as West Nile. There have been movements to require such permits and there are currently cases in court. This too was defeated on a voice vote and a roll call vote. [more hotlinks]

Barrasso then offered a series of amendments, basically aimed at restricting the vast new “wetlands” listed as waters of the US.

His first amendment was to prohibit the federal government from taking over all streams and intermittent streams within a state. He explained: “No one in Washington D.C. has the right to seize and control our streams.” They are already adequately protected under state laws. Under this bill, streams that only flow when storm water runoff fills them would be placed under control of Washington. This one was defeated on voice vote. Other defeated Barrasso amendments included:

• An amendment was designed to prevent Federal government from taking all mudflats in the 50 states.
• An amendment to prevent US takeover of all prairie potholes in the states, with vast numbers being on private farmland and ranchland.
• An amendment to prohibit federal takeover of all wet meadows.
• An amendment to prevent EPA takeover of all natural ponds.
• An amendment to protect and exempt agriculture under the CWRA.
• An amendment that would prohibit controls on animal farming: cattle, sheep, goats, fish, crawfish, etc.
• An amendment that would require that specific language be inserted in the bill to clearly exempt ground water from the regulatory authority of the CWRA.

The fact that all these were defeated, just goes to show the extensive regulatory scope of this bill. Inhofe asked that his name also be attached to all of the amendments.

Midway through these amendments Boxer asked Barrasso if he had any more amendments. He responded yes. She replied “Boy you are a glutton for punishment.” So much for respect for property rights and the Fifth Amendment.

Then Boxer called for the vote on S.787 as amended and it very quickly passed 12-7 on strict party lines.

Now we wait to see what happens in the Senate and what Rep. Jim Oberstar (D-Minn.) does in the House.

Senator Inhofe said in committee that there is no chance of the CWRA passing on the Senate floor. And in a post-mark-up press release reiterated: “The CWRA faces certain demise if it ever reaches the Senate floor.”

Also Senator Mike Crapo (R-Idaho) placed a hold on the bill.

Let’s hope that Senator Inhofe’s optimism is well founded.

Photo Source and caption: USAF, carries the caption: “Airman 1st Class Corey Turpin, 28th Civil Engineer Squadron pest management apprentice, tosses larvicide into a pool of water, May 14. The larvicide keeps mosquitoes in their larvae stage to stop them from maturing. (U.S. Air Force photo/Senior Airman Anthony Sanchelli).”  Such mosquito control activities could become very difficult under the Clean Water Restoration Act.

Clean Water Hoax

by RJ Smith on June 17, 2009 · 3 comments

in Agriculture, Environment

Sen. Barbara Boxer and company are going to bring the Clean Water Restoration Act (CWRA) up for full committee mark-up and vote in their Thursday 18 June business session scheduled for 9:30 a.m. in the EPW Hearing Room, 406 Dirksen. This is Sen Russ Feingold’s S.787 which was introduced on April 2.

With the Democrats having nationalized the financial, banking and automobile industries–bringing a strong layer of socialism to the key portions of the US economy, they are now moving to nationalize the American land and water. Under the Clean Water Act (CWA) the Federal government only had the authority to regulate “navigable waters” and control the discharge of pollutants and dredge and fill activities within those navigable waters.

The so-called Clean Water Restoration Act restores nothing. That is a hoax. Instead it removes the restrictive and limiting terms “navigable” waters and unconstitutionally extends the Federal regulatory authority over ALL waters of the United States. This includes the driest desert areas that may only hold water for a few weeks a year during summer monsoon rains. And it includes completely isolated prairie potholes (small ponds and marshes) with no connection whatsoever to any other waters.

Furthermore, the bill will now prohibit ALL activities affecting all waters of the United States. This means that anything a landowner, a business, a county roads department, a waterfowl conservation program undertakes that could conceivably affect anything that is wet–will be subject to the discretionary jurisdiction of Army Corps or EPA bureaucrats. They will then be able to make the lives of family farmers, ranchers, tree farmers, home builders–almost anyone and everyone–literally impossible. They will have the total power to force every farmer or rancher or ordinary business owner to run a gauntlet of permits, red tape, delays–that will delay projects long enough and cost so much as to essentially shut down or bankrupt even the most necessary and innocuous projects.

There are copious examples of wetlands horror stories over the last 20 years where people have been imprisoned and fined staggering amounts for simply building their own home, cleaning up dumps, or creating habitat for waterfowl. And that occurred under the existing CWA restrictions of “navigable waters” and prohibitions only on discharging pollutants and dredge and fill activities. Once those constraints limiting regulations to “navigable waters” are removed by the CWRA, life will quickly become an even worse bureaucratic nightmare with no exit–particularly so throughout all of rural America. This bill would be much more honestly named The Rural Cleansing Act of 2009.

Before attempting to unconstitutionally extend their reach to include such things as a rancher’s isolated pond in northern Montana, one would think that those concerned with clean water and fishable water would first want to continue work on cleaning up the major navigable waters in the county like, perhaps, the polluted Potomac and Anacostia Rivers that flow past both sides of the U.S. Capitol. Indeed if the Senate Environment and Public Works Committee and the House Transportation and Infrastructure Committee had kept their attention on the goal and if the Federal bureaucrats had not spent so much money and time over the past two decades trying to regulate lands and waters they had no constitutional authority over–maybe we would have far cleaner and healthier waters today.

For more information see here.

Photo by Micah Laaker from Flickr creative commons.