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Summer 2009

Muddying the Clean Water Act

In law many times attorneys argue semantics, the meaning of words, but far too often criminals are made out of ordinary citizens because of government interpretations.

Take for instance the Rapanos decision.  Mr. Rapanos wanted to develop some land that he had bought, by moving dirt from one side of the property to the other, but in doing so Mr. Rapanos was accused of violating the Clean Water Act (CWA). 

The CWA was established in 1972 and makes it a crime to discharge pollutants, including dirt and sediment, into “navigable waters” of the United States. In order to discharge such pollutants one must get a permit from the United States Environmental Protection Agency (EPA) and the United States Army Corps of Engineers.

Mr. Rapanos was charged with violating the CWA because he filled in what the EPA considered wetlands on his property. Mr. Rapanos argued that he was not in violation because the wetlands were not “navigable waters” and as such did not require a permit. But the EPA argued that the wetlands were “hydraulically connected” to navigable water, which qualifies for federal regulation. 

Mr. Rapanos felt that the EPA was trying to make an example out of him by ordering he face a $10 million fine, $3 million in attorneys fees and mandatory jail time. Fortunately, Chief District Judge Lawrence Zatkoff felt that such a punishment was too harsh. and in his decision he stated, “…we have an American citizen who buys land, pays for it with his own money, and he moves some sand from one end to the other and the government wants to give him 63 months in prison. Now, if that isn’t our system gone crazy, I don’t know what is.”

On June 19, 2006, the Supreme Court decided that the federal government had exceeded its authority in the Rapanos case, but the justices did not give any further clarity on the terms being argued in the case.

Well, just over three years later the concern of the intent of the CWA has been resurrected with a federal bill titled the Clean Water Restoration Act. The focus of the bill is the removal of the word navigable from the CWA. While supporters of the bill argue that this would restore the authority of agencies under the CWA. 

Taking out this important word would have huge implication for farmers and ranchers across the nation. Puddles, irrigation ditches, livestock ponds and mud holes could now be regulated by the EPA and federal agencies. 

While supporters of the bill argue such interpretations would never happen, farmers and ranchers in rural America have seen what overzealous environmental regulations can do to private property owners. Many call the Endangered Species Act rural cleansing when species are given priority over humans, communities and peoples livelihood. 

In a recent blow to private property rights, the Senate Environment and Public Works Committee (EPW) passed, S787 the Clean Water Restoration Act, out of Committee in mid-June on a party line vote. Senator James Inhofe (R-Okla), ranking member of the of the EPW, who voted against the bill stated, “this bill is further proof that Washington doesn’t get rural America. The Democrats are moving a bill that amounts in the biggest bureaucratic power grab in generations and it’s directed right at America’s heartland…”

The bills future is unknown, as many vow that it will never reach the Senate floor for a vote and if it does that it would be defeated. 

Congressman Wally Herger, representing rural Northern California, shares Inhofe’s concerns, “I am very concerned that an overly expansive view of the term "waters of the United States" - whether through regulation or an amendment to the Clean Water Act (CWA) passed by Congress - would significantly reduce the rights of private property owners without significantly enhancing environmental protection. This proposal would give EPA and the Corps sole jurisdiction over any standing water across the country.  Indeed, there is little land anywhere in the country that lacks some sort of hydrologic connection to a permanent body of water. Taken to the extreme, a broad interpretation the CWA places the federal EPA and Corps as the central land-use authorities in the nation. I have opposed similar proposals in the past and would strongly oppose this measure should it come before the House of Representatives for consideration.”

We have seen all too many times the impact of overreaching environmental regulation on rural farmers and ranchers. It is unfortunate that the environmental community continues to litigate these regulations and make criminals out of hard working people.  ■

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