Public Policy Issues

Clean Water Act

Since 1972, the Clean Water Act has relied on a federal-state partnership to improve the quality of U.S. waters. Under the act, states retain jurisdiction to regulate waters within their own boundaries, with “navigable waters” under federal jurisdiction.

 

Proposed legislation would expand federal jurisdiction of the Clean Water Act to regulate all U.S. waters. While IA supports the original act’s intent and goals, the association opposes changes that would grant federal regulators sweeping new authority, negatively affect the use and value of agricultural land and lead to uncertainty and additional litigation.

 

Learn more about IA activities related to the Clean Water Act.

 

Background

The Clean Water Act’s reliance on a federal-state partnership to oversee water quality has been fundamental to its success. The boundary between state and federal jurisdiction is established based on “navigable waters,” which the statute defines to mean “the waters of the United States.”

 

The Clean Water Act gives the federal government authority under the Commerce Clause of the Constitution to regulate navigable waters, limited non-navigable waters and wetlands associated with navigable waters. States retain jurisdiction of all other waters and the authority to make decisions about their land, resources and water allocations.

 

The U.S. Supreme Court has examined the Clean Water Act’s scope three times:

  • Riverside Bayview (1985): Upheld federal agencies’ authority to regulate wetlands adjacent to navigable waters
  • Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (2001): Rejected federal agencies’ authority to regulate isolated waters based upon the potential presence of migratory birds
  • Rapanos (2006): Affirmed that the act’s jurisdiction extends beyond strictly navigable waters but does not extend to all areas with a “hydrological connection” to navigable waters
     

Other Legislation

On June 18, 2009, the U.S. Senate Environment and Public Works Committee adopted a compromise version of the Clean Water Restoration Act (S. 787) that would delete the term “navigable” from the Clean Water Act. This change would:

  • Expand federal government jurisdiction beyond the Commerce Clause of the Constitution.
  • Include certain water features that the Supreme Court previously decided were in the purview of the states.
  • Require federal regulation of virtually all wet areas, including roadside ditches, municipal storm drains used for flood control, culverts and pipes, desert washes, sheet flow, erosional features, and farmland and treatment ponds.
  • Override current regulatory exemptions for prior converted cropland, directly impacting over 55 million acres of agricultural land and devaluing the assets of hundreds of thousands of landowners currently making plans to use their property, sell development rights or give conservation easements.

On Oct. 15, 2009, the U.S. House Committee on Transportation and Infrastructure held a hearing on the status of Clean Water Act enforcement. The committee focused on the U.S. Environmental Protection Agency’s successes and challenges in enforcing the act and, where possible, changes to the law might help clarify its scope, making it easier to enforce.

 

The House version of the Clean Water Restoration Act (H.R. 5088) was introduced on April 21, 2010. This legislation includes several exemptions to the regulation of all waters of the United States, but concerns about the act’s implementation remain.

 

IA Recommendations

The Irrigation Association opposes changes to the Clean Water Act that would grant sweeping new authority to federal regulators and upset the balance between federal and state legislators expressly recognized by the current law. Specifically, IA:

  • Opposes the removal of “navigable” from the scope of the Clean Water Act.
  • Opposes the passage of the Clean Water Restoration Act.
  • Encourages EPA to engage industry, stakeholders and environmentalist in dialogue on how to efficiently and fairly enforce the current legislation.
  • Calls for any legislative effort to clarify the Clean Water Act’s scope to:
    • Maintain the distinction between federal and state waters by retaining the term “navigable waters.”
    • Adhere to the fundamental principle that states retain primary jurisdiction over water and land use within their individual boundaries.
    • Clarify jurisdiction without expanding it. Jurisdiction should be clear, unambiguous and practical.
    • Avoid creating more confusion.