Government would get more control in proposed Clean Water Act bill

Buckeye Farm News

Senate Bill 787, introduced by Sen. Russell Feingold, D-Wis., would amend the Clean Water Act to replace the term “navigable waters” with the term “waters of the United States.” Changing the language would give the federal government control over almost all the waters of the United States. All water would be federal waters unless expressly excluded by costly case-by-case litigation challenging the constitutionality of agency determinations, according to American Farm Bureau.   

“The bill would eliminate the phrase navigable water and redraw the lines of what falls under federal jurisdiction. Our concern is that it will include waters that were previously not included such as drainage ditches, disconnected waters, farm ponds and wet spots in fields,” said Adam Sharp, Ohio Farm Bureau’s senior director of legislative and regulatory policy.  More than 99,000 small water bodies and several hundred thousand miles of small and intermitted streams in Ohio alone will likely fall under this ne jurisdiction.

If the bill passes, all wet areas in Ohio could potentially fall under federal jurisdiction, Sharp said. Any type of activity that is done affecting wet areas could be subject to the federal permit process.

“Ironically, Ohio water law already protects many of these waters. We don’t need to create duplicative and costly regulatory burdens for the state that will not result in improved environemental protection,” said Sharp.

“This legislation would open up farmers to citizen lawsuits for doing things like cleaning out a drainage ditch. We’re very opposed to this legislation,” he said.

Proponents of the bill said it will restore some Clean Water Act protections, which have been broken by U.S. Supreme Court cases decided in 2001 and 2006. Those rulings curtailed moves made by the U.S. Environmental Protection Agency and Army Corps of Engineers, which administer the Clean Water Act and its permit system. Proponents say the goal is to restore the Clean Water Act back to the way it was in 2001.

But opponents say the bill as it is written now gives the federal government too much jurisdiction and will make it too cumbersome for farmers who have any type of water on their property. The federal government would have more control over non-point sources, which are defined as “anything that doesn’t come out of a pipe.”

Removing the word navigable from the definition of the CWA act will have expensive, far-reaching and unintended consequences for local as well as state governments.” Said the National Association of Counties in testimony before Congress, “we are opposed to what we see as an alarming expansion of the federal reach of the Act under the proposed bill.  This ultimately means additional costs and time delays.”

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