Farm Bureau tracks, reviews and comments on legislation affecting agriculture.  The organization also keeps its members informed about such legislation so they can also be involved in the legislative process.

Need a federal permit?  Bill would expand Clean Water Act

OPPOSE Proposed CWA legislation (H.R. 2421 / S. 1870) - UPDATE

The Clean Water Authority Restoration Act (H.R. 2421), authored by Chairman James Oberstar (D-Minn.) of the House Transportation and Infrastructure Committee (T&I), would delete the word “navigable” from the Clean Water Act.  Companion legislation, S. 1870, has been introduced in the Senate. 

The House T&I committee held an April 16th hearing on the bill.  The Senate Environment and Public Works Committee, Chaired by California Senator Barbara Boxer, held a hearing on April 9^th.  We need your help keeping the pressure on these two committees, so that the legislation does not move out of committee.  We have issued a Farm Team alert on this legislation; please encourage your members to respond and contact their Congressional representatives.  As a County Farm Bureau, you can also help in the following ways:  1) identify members who have been impacted by misinterpretation of the current Clean Water Act (these are great examples of what would happen if this bill passed); 2) ask your local Board of Supervisors to oppose the legislation ; 3) ask other state and local organizations to oppose the legislation (please let us know of these groups – we are building a coalition); and 4) contact your Congressmember and tell them your county opposes the bill.  See background information below.

If passed, H.R. 2421 would require farmers and ranchers to obtain more permits in order to carry out their daily land management activities.  This will greatly increase the cost and time associated with managing stock ponds, ditches, gutters, and possibly even groundwater.  For example, landowners would likely need to acquire a permit to place a culvert in a ditch or implement conservation practices such as installing buffer strips or restoring wetlands.

This proposal would move the CWA beyond protecting wetlands and waterways, and create legislation that would regulate nearly every wet area in the nation – even if water were only present for a few days.  The bill would also regulate an estimated 55 million acres of prior converted cropland.  Under this proposal, the regulatory reach of the CWA would undergo its greatest expansion since the law took effect in 1972.  It would grant the Environmental Protection Agency and the Army Corps of Engineers federal regulatory authority over all “intrastate waters” and expand the scope of the regulation to all “activities affecting these waters.”  The legislation would greatly expand the Clean Water Act to the detriment of U.S. economic growth and agricultural operations.

Additionally, the legislation is not necessary to protect vital wetlands and waterways. They are already protected under the United States Supreme Court’s 1985 unanimous decision in United States v. Riverside Bayview Homes, which the Court reaffirmed in its recent decisions in SWANCC and Rapanos.  Moreover, the unifying theme of all the Justices in Rapanos was not to amend the CWA, but rather that the Corps of Engineers and EPA should issue new regulations. As stated in the dissenting opinion of Justice Breyer in Rapanos, and as echoed by Chief Justice Roberts and Justice Kennedy, the “Army Corps of Engineers [should] write new regulations, and speedily so.”

The bill is posted on CFBF’s Capwiz website at http://capwiz.com/cfbf/issues/bills/?bill=9926201.  You can scroll to the bottom to look up the California co-sponsors.

Background

H.R. 2421/S. 1870, Clean Water Authority Restoration Act

This legislation would delete the word “navigable” from the Clean Water Act, thus expanding the regulatory reach of the Environmental Protection Agency (EPA) and the Army Corps of Engineers (ACE) to cover all “intrastate waters” and “activities affecting these waters.”  Essentially, the EPA and ACE would regulate nearly every wet area in the nation, including an estimated 55 million acres of prior converted cropland.

This proposal would move the CWA beyond protecting wetlands and waterways, and create legislation that would regulate nearly every wet area in the nation – even if water is only present for a few days.

Under this proposal, the regulatory reach of the CWA would undergo its greatest expansion since the law took effect in 1972. 

H.R. 2421 would require farmers and ranchers to obtain federal permits in an area traditionally reserved for the states in order to carry out their daily land management activities.  This will greatly increase the cost and time associated with managing stock ponds, ditches, gutters, and possibly even groundwater. 

For example, landowners would likely need to acquire a federal permit to place a culvert in a ditch or implement conservation practices such as installing buffer strips or restoring wet areas that have no hydrological connection to a traditionally navigable waterway.  This is counterproductive in our efforts to improve the environment.

All interstate and navigable waterways, streams with permanent flow and streams with seasonal flow are already protected under the Federal law and regulated by EPA and ACE.

H.R. 2421 is not necessary to protect vital wetlands and waterways. These areas are already protected under existing law as defined by a series of United States Supreme Court cases such as United States v. Riverside Bayview Homes in 1985, SWANCC in 2001, and most recently Rapanos in 2006.  Furthermore, in the recent Rapanos case the unifying theme of all the Justices was not to amend the CWA, but rather that the ACE and EPA clarify their existing regulations and speedily so.

The legislation has broad support in Congress, largely because the underlying impacts are not obvious and not understood.  27 members of the California delegation in the House of Representatives have signed on as co-sponsors of this bill.  The legislation would greatly expand the Clean Water Act to the detriment of U.S. economic growth and agricultural operations.  

Why the “Savings Clause” of H.R. 2421 Is Not Adequate

The savings clause of H.R. 2421 does not address agriculture’s concerns with the broad jurisdictional reach of the legislation and, in fact, creates more confusion.

The savings clause does not exempt any waters or areas from the broad definition of “waters of the United States” under H.R. 2421. It exempts only certain activities from being considered “discharges.” For example, maintenance of an irrigation ditch would not be considered a “discharge,” but the ditch itself would still be in a jurisdictional water such that all other activities affecting the ditch would be regulated.

Fails to adopt important regulatory exemptions for prior converted cropland and waste treatment systems.

Limits the agencies’ ability to adopt future regulatory exemptions. By setting forth specific statutory exemptions, many will argue that these are the exclusive exemptions recognized by Congress -- there are no others.

Paraphrases the existing statutory exemptions, unnecessarily raising questions regarding Congressional intent with respect to the full scope of the existing statutory exemptions.

One example is that the bill does not address Section 502(14), an exemption found in statutory definition relating to agricultural stormwater discharges

Other examples include the application of fertilizer, fire suppression activities, and other vital farming or forestry activities that may incidentally add material to “waters of the United States,” and are not exempt by statute or addressed in the “savings clause” of H.R. 2421

We know from experience that savings clauses are well intentioned, but become misinterpreted and narrowed in scope over time.  The savings clause in H.R. 2421 is very susceptible to future misinterpretation and misimplementation by agencies.

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