Washington – Conservation groups recently celebrated the first
major victory for federal legislation they say could protect
millions of acres of wetlands in the United States left susceptible
by Supreme Court decisions earlier this decade.
An amended version of the Clean Water Restoration Act, meant to
restore the level of waters protection to that prior to the court
decisions, passed the Senate Environment and Public Works Committee
by a vote of 12-7. Supporters say the bill would strengthen the
original Clean Water Act of 1972.
“This is a huge step toward restoring the Clean Water Act’s
safety net for prairie potholes and well over 20 million acres of
wetlands throughout the U.S. that provide critical habitat for
waterfowl and other fish and wildlife – and hunters and anglers,
said Scott Yaich, director of Conservation Programs for Ducks
Unlimited. Much of that acreage is located in the prairie potholes
of the Dakotas, a major duck-producing region.
Detractors fear the new version would expand the scope of the
bill, and infringe on property rights.
Among other things, the bill replaces the term “navigable
waters” with “waters of the United States” to determine which
waters are protected. The newer version also spells out exemptions
that existed in the 1972 law. The original CWRA version, authored
by Wisconsin Sen. Russ Feingold, offered a “general reference” to
the exemptions, according to Geoff Mullins, of the Theodore
Roosevelt Conservation Partnership. The “compromise” bill
“explicitly put (the exemptions/exclusions) in the ‘definition’
section, which carries a lot more weight,” he said.
Those exemptions, supported by farm groups and others, include
“prior converted cropland” and “waste treatment systems.”
Supporters also say the bill would save federal dollars by
stream-lining the permitting system, one they say now is shrouded
in confusion for the Environmental Protection Agency and the U.S.
Army Corps of Engineers, those agencies charged with enforcing the
Clean Water Act.
“This will help landowners’ ability to get permits,” Mullins
said. “Right now there’s so much confusion over what’s covered and
what’s not covered.”
He said the EPA and Corps of Engineers now must consider each
permit request on a case-by-case basis.
According to Ducks Unlimited, “The guidance on interpreting the
Clean Water At from the EPA and Army Corps came in response to two
Supreme Court cases. Since the guidance was released, confusion
over permitting requirements among farmers, ranchers, developers,
and other landowners and managers has increased dramatically as
agencies have struggled to apply the guidance to proposed
Mullins said passage by the Senate committee was the first
thumbs-up the legislation has received in Congress. It’s been
introduced during past sessions, but has failed to generate enough
interest and support to move forward. He hopes the Senate committee
action provides a springboard – for both Senate action, as well as
activity in the House.
“There’s clear momentum now for legislation to be introduced and
considered in the House of Representatives this summer,” Scott
Kovarovics, conservation director for the Izaak Walton League of
Mullins said in the Senate, the next step could be debate and a
decision on the Senate floor.
But there remains opposition to the bill, also sponsored by
Democrats Barabara Boxer, of California, and Max Baucus, of
Senate Republican Mike Crapo, of Idaho, immediately followed the
committee’s vote with a press release in which he promised to
filibuster the bill, if needed.
“This bill threatens the current Clean Water Act statute and
would allow for government regulation of virtually all interstate
and intrastate waters and their tributaries Š,” Crapo said in a
press statement. He also said the bill would grant federal
regulators “new and expanded authority over activities affecting
these waters Š”
And, according to the Texas and Southwestern Cattle Raisers
Association: “If this bill passes in Congress, ranchers across the
U.S. will be forced to get a permit to continue everyday operations
on their own land.”
Conservation groups insist the bill is simply a means to regain
ground lost in water protection as the result of the two court
cases – the Solid Waste Agency of Northern Cook County v. the Corps
of Engineers in 2001 (SWANCC), and Rapanos v. the United States in
“This is not ‘the biggest bureaucratic power grab in a
generation,’ as some have said, but rather it is about clean water
and healthy watersheds for future generations,” said Steve Moyer,
vice president for Trout Unlimited, in a press release. “Two bad
Supreme Court cases have derailed the Clean Water Act, and today’s
courageous action by the committee gets us a big step closer to
getting the law, and all its clean water benefits, back on
Another Republican senator, James Inhofe, of Oklahoma, called
the CWRA the “biggest bureaucratic power grab in a generation.”
But groups like TRCP and the National Wildlife Federation say
the bill doesn’t represent an expansion of jurisdiction, but a
return to protections offered by the original Clean Water Act,
originally called the federal Water Pollution Control Act, signed
by President Richard Nixon in 1972.
Mullins said some opposition to the current legislation seems
ideologically based – a “different idea of the role of
The “findings” section of the legislation points out a number of
reasons for the updated Clean Water Act, including:
€ Draining or filling intrastate wetlands and channelizing or
filling intrastate streams can cause or exacerbate flooding that
causes billions of dollars of damages annually.
€ Millions of individuals in the United States enjoy
recreational activities that depend on intrastate waters, such as
waterfowl hunting, bird watching, fishing, and photography.
€ Approximately half of North American migratory birds depend
upon or are associated with wetlands and small and intermittent
streams, including ephemeral streams.
The amended version of the legislation also contains reference
(in the “savings” clause) to several provisions in the original
Water Pollution Control Act.