Clean Water Act

Issue:
H.R. 2421 and S. 1870, the Clean Water Restoration Act of 2007, would expand federal Clean Water Act (CWA) jurisdiction to all intrastate waters including groundwater, ditches, culverts, pipes, sheet flow, erosional features, farm and stock ponds and prior converted cropland.

Impact:
H.R. 2421 would delete the term “navigable” from the CWA. If it becomes law, this amendment would break ground by completely unhinging the CWA from the Commerce Clause of the U.S. Constitution for the first time. This would significantly change the intent of Congress when it enacted the CWA and result in the most significant expansion of the CWA since its enactment 35 years ago.

Because the CWA already regulates truly navigable waters and streams with both permanent and seasonal flows, the enactment of H.R. 2421 would open the door to the broadest possible interpretation of the CWA. Its enactment also would end claims that Congress originally intended any limits on the CWA’s regulatory reach. Further, it would impede agricultural activities, impose additional unfunded mandates on state and local governments and pre-empt those governments and the use of private property.

Proponents assert that H.R. 2421 “restores” the original intent of the CWA and “clarifies” CWA jurisdiction, however, it does neither. H.R. 2421 would:

• Grant the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps), for the first time, jurisdiction over all “intrastate waters” – essentially all wet areas within a state, including groundwater, ditches, pipes, streets, municipal storm drains, gutters, and farmland.
• Grant EPA and the Corps authority over all “activities affecting these waters” (private or public), regardless of whether the activity is occurring in water or whether the activity actually adds a pollutant to the water. Regardless of whether an activity is occurring in water, the fact that the activity may affect water would allow federal regulation under the CWA.
• Change the original underpinning of Congress in enacting the CWA from the Commerce Clause to the full “legislative power of Congress under the Constitution.”
• Eliminate the existing regulatory exclusions for prior converted cropland and waste treatment systems.

The bill contains a “savings clause” that purportedly addresses agricultural concerns, but in fact it does not. The clause: 1) Does not exempt any waters or areas from broad jurisdiction; 2) Fails to include important regulatory exemptions for prior converted cropland and waste treatment systems; 3) Limits the agencies’ abilities to adopt future regulatory exemptions; and 4) Paraphrases the existing statutory exemptions, raising questions regarding Congressional intent with respect to the full scope of the existing statutory exemptions – including omitting Section 502(14) which exempts agricultural stormwater discharges.

Farm Bureau Policy:
Farm Bureau supports limiting federal CWA authority to navigable streams and flowing waterways that have continuous flow.

Legislative Request:
The Pennsylvania Farm Bureau urges Congress to lessen the damaging regulatory impact on agriculture in the Clean Water Act. Without substantial changes, Farm Bureau will oppose H.R. 2421 and S. 1870.