This is a complex case of state's rights vs. federal power in many ways. One of the times when the federal government should step in to help solve problems such as water quality protection and water supply protection is when the states seem to be not taking care of these issues. The federal government also gets involved in interstate transport of water. The EPA, DOE, The Department of the Interior and others also have their peice of the pie, along with state and local regulatory and legislative bodies, amongst others. Some western states, for example, see water quite differently than some eastern states. State's rights are also seen differently across regions, and even within some states. This is not a simple issue, and really would need a lot more than a short commentary to get a handle on it. However, some things are clear: (1) some states are not protecting their precious water as much as they should; (2) water is becoming increasingly short in some areas of the country and water disputes like we have not seen for a long time could erupt; (3) the US population is increasing, but our water supply is not; (4) water may be the most precious natural resource we have in many ways, but its pricing does not reflect that preciousness, and our policies sometimes do not protect well enough this element that determines not only the quality of life, but life itself; (4) pricing and control (or lack of control) of water will be some of the most complex and most emotionally laden problems we may face in the future, especially in the water short states; (5) many industries that exist today and will be growing in the future will need more and more water unless technologies and production cycles change; and (6) climate change could bring significant changes to the hydrological cycle. There are, of course, many other problems associated with these very complex issues, such as how so many of our daily activities in our homes, businesses, farms and more will likely increasingly demand more water. Maybe it is time to give some important carrots to universities, industries, agriculture, government think tanks and others to get working a lot harder and smarter on the development of new ideas for increased water use efficiency and better ideas for how to deal with water-related effluents. I wish our leaders well in trying to find the better answers to these problems in more effective legislation. However, what is also needed is better education on these issues for the general public and many others. It is also important to look at these issues in the very long run, and toward the betterment of many of our future generations.

The Clean Water Act is the bedrock that protects the nation’s waters, including wetlands, which support our nation’s economic well-being, enable our quality of life, and sustain our environment for generations to come. Over its thirty-seven-year history, the Clean Water Act has restored countless rivers, lakes, and streams, protected drinking water supplies, and preserved water quality and water-related habitat essential to waterfowl, wildlife, and fisheries.

Beginning in 2001, however, the U.S. Supreme Court decisions in Solid Waste Agency of Northern Cook County v. Corps of Engineers (2001) and Rapanos v. United States (2006) threw the nation’s clean water programs into turmoil, creating confusion and uncertainty for communities, developers, and agricultural interests, and placed at risk the nation's ability to restore, protect, and maintain water quality and the water-related environment.

Turmoil, confusion, and uncertainty are no way to run a program. That is why I am drafting legislation to restore the common understanding of the scope of the Clean Water Act based on decades-old interpretations of the U.S. Army Corps of Engineers and the Environmental Protection Agency. By restoring the common understanding and practice of protecting the nation's waters and wetlands as existed prior to 2001, legislation would provide much-needed certainty to the regulated communities, and avoid costly litigation over responsibility for protecting clean water. It would also restore bedrock protections for our citizens and our neighborhoods from polluters who place families and communities at risk.

Opponents of legislation to restore the Clean Water Act characterize the restoration as a mammoth expansion of federal power. Restoring the Clean Water Act is only an expansion to the extent the Supreme Court ignored the intent of Congress and 30 years of precedent by narrowing the Act.

Opponents argue that the Federal government should not require a permit for everything you do that might affect a wet area. I agree. The Clean Water Act never required such permits and I will not offer legislation that would do so.

Simply put, if it was not regulated before 2001, it will not be regulated with the enactment of my legislation.

Some people have opposed the Clean Water Act for decades, and it should not come as a surprise that these same groups are using recent Supreme Court decisions as justification to roll back protections under the Clean Water Act. On this, I strongly disagree.

In 1972, Congress voted overwhelmingly to overturn President Nixon’s veto of the Clean Water Act and to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. Since that time, Americans have overwhelmingly expressed their support for protecting our waters and keeping them safe from polluters. My legislation will restore America’s commitment to clean water.

Supporters of the “Clean Water Restoration Act” claim that their goal is to restore the intent of the Clean Water Act and clarify the scope of federal jurisdiction over the nation’s waters, but this assertion is simply false. While ensuring that we have clean water is a worthy goal, this bill goes far beyond any perceived need to “restore” the scope of the Clean Water Act. This bill is nothing less than a massive expansion of federal jurisdiction that would have a devastating impact on our economy.

Under the proposed bill, virtually any wet area, any area that might get wet at some point, or any activity affecting those areas would be subject to federal regulation. That’s an incredibly broad umbrella of federal “protection” – well beyond the bounds established by the Clean Water Act.

This is hardly a restoration. Any “clarity” provided by the bill would come from knowing that almost everything you do that might affect a wet area will require a federal permit.

This heavy-handed legislation to expand federal authority will drown U.S. agriculture, manufacturing, and other businesses in excessive costs, delays, and endless litigation. With our economy already in troubled waters, this legislation would push more American jobs overseas and provide more drag on any economic recovery.

Bill supporters paint the picture that if the federal government does not protect all waters, then no one will. This is not the case; it’s another example of Democratic overreach that assumes the federal government knows best.

States have the right and responsibility to monitor and protect the waters within their borders. But under the proposed bill, this long-standing cooperative relationship between the federal government and the states will be wiped out. State, local, and individual water and land use rights will be trampled over in a mammoth expansion of federal power.

One thing with this legislation is a certainty: a boom in litigation and soaring costs associated with doing anything related to a water or an activity affecting a water will result if this bill becomes law.

George Dunklin, an Arkansas Game and Fish Commissioner, and owner of Dunklin Grain in Stuttgart, Arkansas, wrote to share his first-person perspective on our Clean Water Act question:

As a rice producer, clean water is my livelihood – it is the lifeblood for the rice I grow and the heart of the Delta where I live. The wetlands and streams that recharge underground aquifers and help ensure our clean water resources have lost federal protection from pollution and destruction. Restoring protection to our nation’s water supplies will ensure that farmers like me can continue to put food on America’s tables. The Baucus-Klobuchar bill that passed the Senate EPW Committee will restore those protections.

Included in the bill is a “savings clause” that will preserve existing exemptions for farming and forestry activities. The bill will not force farmers to stop farming nor will it change regulations that applied prior to 2001. This bill is also not a “land grab” as some organizations have claimed. It is a strategy to protect the public from pollution and avoid toxic releases into valuable irrigation, recreation and drinking water supplies. Leaving waters and wetlands unprotected threatens clean water for everyone.

Also it will protect one of Arkansas greatest treasures, migratory waterfowl that are produced in the Prairie Pothole region of the Dakotas. The passage of the Baucus/Klobuchar Clean Water Compromise will restore the protection that was once in place to protect these valuable and highly productive breeding grounds for mallards, teal, gadwalls and other species of ducks that winter on my rice fields.

As a rice farmer, Arkansas Game and Fish Commissioner and a Ducks Unlimited supporter and volunteer, I support the Baucus/Klobuchar Compromise on Clean Water (SB787) to help secure clean water across America.

Clean water is an essential public resource that we must protect. One month and forty years ago, when the Cuyahoga River caught fire in Cleveland, there was no question that federal action was needed to protect our precious water resources. The fire resulted from the deliberate discharge of highly volatile chemicals into the river. The incident ushered in the Clean Water Act, establishing the legal cornerstone to prevent future illicit discharges from occurring again and to “restore and maintain the chemical, physical and biological integrity of the nation’s waters.”

Based on rules and regulations set by President Nixon’s Environmental Protection Agency, the Clean Water Act has made significant strides towards achieving its purpose and goals. However, recent 5-4 Supreme Court decisions in SWANCC v. United States Army Corps of Engineers (2001) and again in Rapanos v. United States (2007) have caused significant setbacks, including forcing the EPA to drop more than 500 Clean Water Act enforcement actions. The Clean Water Restoration Act simply codifies the historical regulatory guidelines established by the Nixon administration. The Restoration Act also provides historic regulatory exemptions for agriculture and other activities so that the clock on the scope of the Clean Water Act is effectively reset to its post SWANCC jurisdiction.

These decisions have caused:

- The entire Los Angeles River watershed to be determined as non-jurisdictional water;

- EPA policies that would disqualify 96% of Arizona’s streams, creeks and rivers from protection under the Clean Water Act;

- The Eleventh Circuit in Alabama to overturn a Clean Water Act conviction of a polluter for discharging contaminants into headwater streams of the Black Warrior River;

- U.S. District Court in Texas failed to convict in U.S. v. Chevron Pipe Line Co. for spilling 3,000 barrels worth of crude oil into a creek bed in Snyder, TX.

This bill has been under consideration for nearly six years and has undergone several modifications to get the Clean Water Act back precisely back to the Congress’s original intent of the law as it was applied pre-SWANCC. During this period, opponents to the bill offered no alternative legislative solutions, just complaints about both the Supreme Court decisions and misleading rhetoric about the scope of the Clean Water Restoration Act. It should come as no surprise that many of the same special interest opposing the Restoration Act also opposed the Clean Water Act in 1972.

The Restoration Act does not change permit requirements nor does it change who are what is regulated under the law. Simply put, if you needed a permit for your activity affecting a body of water in 2001, before SWANCC, you’re going to need one now. Likewise, if you did not need a permit before SWANCC, you will not need one now either.

Just like the unfortunate circumstance of the Cuyahoga River fire that led Congress to create the Clean Water Act, the Clean Water Restoration Act aims to correct the Supreme Court’s unfortunate departure from decades of legal precedent addressing America’s ailing waterways. It is time to get back to the business of restoring America’s waters and the only way this is possible is by restoring the Clean Water Act’s historical scope.

The National Mining Association (NMA) respects that the supporters of this legislation consider their approach to be a clarification of congressional intent of the Clean Water Act’s (CWA) jurisdictional reach. We disagree. Rather, these proposals would alter the statutory intent of the Act, unleashing a significant and substantial federal usurpation of the traditional powers of state and localities in land use and water resource management. For many businesses, including mining, changing the jurisdictional reach of the law poses considerable consequences for investments and compliance with existing laws.

Since coal and minerals are fixed in location, mining companies cannot go about finding, producing and supplying our economy without incurring water or land features where water may pass. As a result, NMA members have a long history of experience with questions about which waters fall within the purview of the Clean Water Act as well as the various permitting, performance standards and best practices that protect them.

The CWA is a comprehensive and complex statute. To determine congressional intent, one must start with the term “navigable waters,” which provides the statutory context for the obligation to obtain a permit before discharging a pollutant. In defining the term “navigable waters” as waters of the United States, it has been recognized that Congress intended to regulate at least some waters that do not meet the traditional understanding of the term. That does not, however, carry with it the notion that the term “navigable” has no effect at all on the meaning of waters of the United States. The Supreme Court’s decisions in both SWANCC and Rapanos confirm that the boundary is those waters with a “significant nexus” to traditionally navigable water.

When those bounds are reached does not leave a gap in protection. Where waters of the United States end, waters of the state still remain, and there is ample evidence the states are fully up to the task of protecting those resources. Indeed, the core policies informing the administration of the CWA include recognition of the states’ historic role in managing their water resources and their primary responsibility and rights to plan the development and use of land and water resources.

The proposed legislation alters fundamentally this framework. Deletion of the term “navigable waters” removes the historic understanding and constitutional bounds of federal regulation. No longer would waters need any sort of nexus or connection—let alone a significant one—with navigable, or even interstate, waters for the federal government to assert jurisdiction over any water or land over which water may pass. Moreover, removing “navigable” as the reference point eliminates the Commerce Clause power as the outer bounds of the federal government’s reach.

The existing permitting system is already overwhelmed, and the time and costs incurred to work through the permitting process are protracted and expensive. NMA supports the goals of the CWA to restore and maintain the integrity of our nation’s waters, but we do not believe changing the federal reach of that law is necessary to achieve those goals. A greater threat to the CWA’s goals may be a permitting system that is not capable of producing reasonable decisions in a reasonable timeframe—under mining much needed economic activity during a time when our economy is attempting to mount a fragile recovery.

Partisan Water Bill Would Harm Rural America

If you live in rural America, look out: Democrats in Congress are targeting you. Rural communities are under siege from a barrage of proposed mandates that threaten the viability of family farms and the rights of property owners. Just consider S. 787, the Clean Water Restoration Act, which has an appealing but misleading title —everyone supports clean water, but not everyone supports perhaps the biggest bureaucratic power grab in a generation, directed right at America’s heartland. The little-talked about bill with huge implications has already passed the Senate Environment and Public Works Committee on a party line-vote. (Also See Inhofe YouTube Video on S. 787.)

Let me convey what this legislation is not about: it is not about clean water and it is not about restoring what was lost. For the last 37 years, the federal government and the states have successfully partnered to improve the quality of our nation’s lakes, streams, and rivers. This bill eliminates that partnership by transferring a state’s authority to protect its waters to the federal government in Washington. Moreover, instead of improving water quality, a goal we all share, the bill would create federal obstacles to local storm water management and would delay development of local water infrastructure.

In effect, the bill would require a federal permit=2 0for just about any activity that could affect virtually any body of water. It would extend the scope and reach of federal water jurisdiction beyond anything that ever existed under the Clean Water Act. The bill would put under federal jurisdiction virtually anywhere water collects, including “mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, (and) natural ponds…” It covers “all impoundments” of water, which would include ditches and private ponds. And it calls for the federal reach t o go out “to the fullest extent that these waters, or activities affecting these waters,” can be controlled.

Congress passed the Clean Water Act in 1972, and I support its overarching goal to ensure that navigable waters, and the rivers and lakes feeding into them, are kept clean. But over the years, government regulators stretched the definition of “navigable” beyond all reason. In 2001 and 2006, the Supreme Court stepped in to spell out the statutory and constitutional boundaries of federal jurisdiction under the Clean Water Act. The Court held that Congress meant what it said and upheld limits on federal power under the Act. S. 787 is an attempt to overturn the Supreme Court and radically change the original meaning of the Clean Water Act.

Of course, advocates say the bill is to make sure our waters are protected. They say they just want to clarify things. Make no mistake about it, though. If this bill becomes law, it would allow government regulators to have a say over the use of virtually every body of water, every piece of property having any kind of water on it, and every activity that could affect water. It would take away jurisdiction from state and local authorities who know local needs and conditions better than anybody from Washington. It would affect the property rights of citizens who want to use their land. And, instead of advancing progress made in cleaning our nation’s waterways, it would add more bureaucracy, cost and delay to citizens’ lives.

Consider that just last week, the House Committee on Small Business held a hearing on “Meeting the Needs of Small Busines s and Family Farmers in Regulating the Nations Waters.” All five of the witnesses said they were opposed to S. 787. The business and farming communities understand that the Clean Water Restoration Act would create bigger government, more permitting requirements, higher compliance costs and increases in litigation with little or no impact on the nations waters. The witnesses left the Small Business Committee members with a clear message: leave the Clean Water Act the way it is.

In conclusion, I will certainly do everything possible to protect America’s waters from pollution. But I will also do everything in my power to protect our freedoms from those who seek to use environmental law to transfer more and more power from the states back here to Washington.

Electric companies fully support the protection of the nation’s waters and the federal-state partnership established under the Clean Water Act that provides that protection. Water is crucial to the generation of electricity, and utilities spend millions of dollars every year to protect and improve water quality, including the restoration of wetlands. Our efforts in this area have not diminished since the Supreme Court in 2006 affirmed the jurisdictional partnership of the states and the federal government under the Act.

Proposed legislation – specifically Senate bill 787 as amended by the Senate Environment & Public Works Committee (EPW) on June 18 -- will not restore, but vastly expand jurisdiction under the Clean Water Act. By replacing the term "navigable waters" with the newly defined term "waters of the United States," the bill will eliminate the traditional basis for Clean Water Act jurisdiction under the Commerce Clause. This change will expand the scope of federal jurisdiction to include, per the new definition, "all interstate and intrastate water."

The result is that the 36-year-old partnership between federal interests and states in applying the Act would be drawn to a close, with the practical result of federalizing every drop of water in the country, with consequences not yet well examined or understood.

The resulting new water treatment guidelines would require the installation of new systems to make sure water discharged into waste treatment systems meet water quality standards. The cost for such an effort could easily run into excess of tens of billions dollars without a commensurate environmental benefit. The costs for electric utilities could be prohibitive to the point that older plants would have to be closed and the cost of electricity for everyone would increase.

There is still much that we can do to improve our nation’s waters, but extending federal jurisdiction to every drop of water, however small or isolated, is not necessary to accomplish that task. Through updated regulations, the federal government can clarify the scope of federal jurisdiction. Then Congress could consider stepping in to address the protection of essential waters clearly identified as falling in between the protections established by the states and the federal government.

NRDC strongly supports passing legislation to underscore the fact that the Clean Water Act extends to all "waters of the United States," and to restore protections to water bodies that historically were covered by the law but lack clear protection today.

This comes down to an inescapable geological reality: water flows down hill. You can't protect the "navigable" waters of the Mississippi River or the Chesapeake Bay if you don't protect the headwaters upstream. Moreover, feeder streams, inland lakes and wetlands, and seasonal waters have significant value in their own right, as they filter pollution, store flood waters, provide habitat for fish and other wildlife, and replenish drinking water supplies.

Today, however, because of recent Supreme Court decisions that give undue weight to the word "navigable" in the Clean Water Act, the law is a mess. That term is simply a remnant of the fact that the Clean Water Act grew out of the Rivers and Harbors Act, written back in 1899. Though the word did not historically act as a significant constraint on Clean Water Act protections, opponents of a comprehensive program have used the Supreme Court decisions to attack coverage for critical waters. Day-to-day implementation of the law has been thrown into chaos, and enforcement has been undermined. It is time to reassert that all waters must be safeguarded.

Congress passed the 1972 Clean Water Act after the Cuyahoga River caught on fire and Americans became alarmed at the degradation of their waterways. The focus of the law then (as it is today) was on preventing pollution, and protecting the fish, wildlife, and humans who rely on water. Honoring the law's purpose requires fixing it. If we abandon whole classes of water bodies, we risk allowing rampant pollution to again threaten our precious resources and reverse decades of progress.

Papermakers are innovators in water quality and long ago many began treating their wastewater via processes that mimic the natural water-cleansing that occurs when water moves through wetlands. Once treated and in compliance with water quality standards this water is returned to the water cycle. This successful process comes to a screeching halt under the changes to the Clean Water Act currently being pushed in Congress.

Water treatment processes utilized by the paper industry have become so sophisticated that their discharged water typically has no effect on downstream aquatic life. This was confirmed by a recently-released study by the independent National Council for Air and Stream Improvement which spent a decade examining water quality and aquatic life in four representative streams around the country with discharges from papermaking facilities. The study found that other point sources or naturally-occurring changes often were the cause of any changes that were detected. The results of this peer-reviewed study represent an important milestone for an industry that has worked hard over the past several decades to successfully implement sustainable practices.

Critical to the ongoing successful improvement in water treatment processes by papermakers is the ability to use water treatment ponds that are kept separate from waterways and streams and in which water purification can occur safely without impacting water quality or aquatic life in those waterways.

The proposed legislation would, ironically, subject these separated water treatment ponds to the same high water quality standards as the waterways the treatment ponds are working to protect. In other words, the water going into the water treatment system would have to be treated before going into the water treatment system, which completely negates the purpose of the treatment system itself. Instead of embracing the existing process as a key component of water quality protection, the legislation passed by the Senate Environment and Public Works Committee adopted a partial approach that only underscores the regulated community’s concern that this legislation is really intended to expand federal authority rather than improve water quality enforcement.

There is no doubt that recent U.S. Supreme Court decisions have made life more complicated for the U.S. EPA and Army Corps of Engineers. However, this is really a problem of the agencies’ own making as they spent the past 30 years looking for easy answers to jurisdiction rather than refining an understandable approach supported by all stakeholders. Now, the Senate is pursuing a sledgehammer approach that the committee has covered in a soft cloth in an effort to soften the blow. But the blow will land just as hard, overturning state prerogatives, confusing both the agencies and the regulated community by its broad approach, and producing endless litigation. Whether it exactly improves water quality is doubtful.

As for the forest products industry, successful regulatory efforts that aim to ensure clean waterways should focus on water exiting treatment processes into our water supply, not on the quality of water entering treatment processes to be cleaned. These treatment processes are vital to maintaining good water quality in our streams and rivers. Forcing their wholesale reinvention in the belief that you can improve on what has been perfected by Mother Nature—and which private industry is successfully mimicking—will only waste time and money.

Without question, Congress must pass legislation to restore Clean Water Act protections for wetlands, lakes, and streams that had been protected prior to the SWANCC Supreme Court decision in 2001. The millions of wetland acres and stream miles that are losing protection are even more indispensable in the face of climate change. And the confusion and delay the Court has triggered is harming America’s waters, landowners, and taxpayers alike.

When Congress passed the Clean Water Act in 1972, it defined “navigable waters” broadly as “waters of the United States,” to protect the Nation’s wetlands, lakes, and streams from pollution and destruction regardless of their navigability. Not until 2001 was “navigable” interpreted to restrict the broad scope of the Act, upsetting over 25 years of precedent that over time had clarified which waters are “waters of the United States.” Instead of settled precedent, the Court’s guidepost for waters of the U.S. is now a confusing and unworkable “significant nexus test.” So much for clarity.

Clean Water opponents seek to retain “navigable” in the Clean Water Act in order to roll back protections for non-navigable wetlands, lakes, and streams, apparently content with the status quo of confusion and delay. Members of Congress committed to clean water will pass a bill this year that restores protections for wetlands, lakes and streams protected prior to 2001, and gets us back to the business of cleaning and restoring our precious water resources. Learn more about our work to pass the Clean Water Restoration Act at the National Wildlife Federation's website.