Editorial: Water Bill, Four Times Defeated, Brought Up Again

Still flourishing these days is broad and staunch opposition to Clean Water Restoration Act legislation introduced by Sen. Russ Feingold (D-Wis.) who says the legislation will re-establish federal protections for wetlands he claims were undermined by Supreme Court decisions. The Lakeland Times cites critics who say the proposal represents an unprecedented expansion of federal regulatory power.

According to the Waters Advocacy Coalition (WAC), “Feingold’s legislation does not restore the Clean Water Act’s scope of authority but radically expands it.” This would be accomplished by altering the Act’s definitional structure by removing the word “navigable” from the Act, thus “giving the federal government jurisdiction over all waters of the United States,” wrote Richard Moore, investigative reporter for the Times.

Feingold claims his bill, Senate 787, would merely “restore the intent” of the 1972 Clean Water Act. Due to widespread opposition, the Senate Environment and Public Works Committee passed a compromise version of the bill on June 18, attempting to stifle criticism by opponents, who say the compromise is merely window dressing because it continues to delete the word “navigable.”

It took two Supreme Court decisions to narrow the scope of waters to be regulated under the Act, wrote Moore, who added: “Indeed, according to the language of the (new) bill, the federal government would now regulate all the waters of the United States, including 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.”

Over the past several decades, the WJ has recounted many of the ongoing battles over water-regulation issues. We reported court decisions that made clear that the federal government does not have the authority to regulate potholes just because waterfowl was known to have stopped there occasionally, especially (if we recall correctly) when the potholes were not located in established flyways. It never was the intent of Congress to give the federal government such broad control, critics say.

While Feingold argues that the Supreme Court decisions took away vital clean-water protections that existed for 30 years, critics say otherwise. Among them is WAC, comprised of various industry and trade groups such as the National Association of Realtors and the National Association of Manufacturers. The group also includes state departments of agriculture and the National Council of Farmers Cooperatives, Moore said. WAC says Feingold’s claims about his legislation “just aren’t accurate.”

WAC critiqued the legislation both last year and this year, and its arguments remain the same. Virginia Albrecht, WAC’s attorney who testified before a Senate panel in April 2008 on a similar proposal in that congressional session, said, “The legislation would have serious unintended consequences…it would impose further regulatory burdens on states and local communities, usurping state authorities to manage vital water resources, including groundwater, and imposing substantial costs and delays in the replacement of aging water infrastructures.” (Emphasis ours.)

“…imposing substantial costs and delays in the replacement of aging water infrastructures” are words that should make us all stand up and take notice. Certainly those in waterways industries should be among those who oppose Senate 787 (or similar bills), joining critics, who include not only Republicans but also rural Democrats, according to Moore. The bill failed during four previous congressional sessions. As might be expected, environmental and conservation groups (the League of Conservation Voters and Ducks Unlimited) support the legislation.

Our experience with government power grabs and environmental law enforcement abuses should provide sufficient stimulus for us to be “aginners” in the case of this issue. If that’s not enough, remember the water infrastructure construction backlogs reported by the U.S. Army Corps of Engineers and the fact that environmental law makes it legal for any citizen to challenge any project in court on environmental grounds, whether their reasons are frivolous or not.

Feingold’s proposed changes to the 1972 Clean Water Act (and similar substitutes) should be defeated, again.

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