The Clean Water Restoration Act

The Clean Water Restoration Act is a really bad idea.
Inherency
Passage of the bill is likely
Jim Murphy (Wetlands and Water Resources Counsel for the National Wildlife Federation), June 18, 2009, “Clean
Water Restoration Act passes out of Senate committee, big step towards passage,” Great Lakes Law blog (the blog
of Professor Noah Hall of the Great Lakes Environmental Law Center),
http://www.greatlakeslaw.org/blog/2009/06/clean-water-restoration-act-passes-out-of-senate-committee-big-step-
towards-passage.html
(Note: This post is written by Mr. Murphy on Prof. Hall’s blog)
Passage out of the Senate Environment and Public Works Committee has greatly boosted the bill’s chances of
becoming law. Conservationists believe the compromise bill can garner strong bi-partisan support on the Senate
floor. Additionally, it is anticipated a companion bill will soon move in the House Transportation and Infrastructure
Committee, where Chairman James Oberstar (D-MN) has been an early champion of restoring pre-SWANCC
protections to our waters. In the previous Congress, nearly 180 House members co-sponsored a bill substantially
identical to the one originally introduced by Senator Feingold this Congressional term.
The Obama Administration supports clarifying the Clean Water Act
L. Paul Goeringer (Research Associate) and Rusty W. Rumley (Staff Attorney), “The Clean Water Authority
Restoration Act: A Primer of Background Material,” National Agricultural Law Center at the University of
Arkansas School of Law, Posted: August 26, 2009,
http://www.nationalaglawcenter.org/assets/articles/goeringer&rumley_cwara.pdf
The Obama Administration has written a letter the Senate Environment and Public Works Committee in support of
this legislation to clarify the jurisdiction of the Clean Water Act. In regards to this letter, Senator Boxer, the
Chairman of the Committee, stated that
The Obama Administration has provided a clear call for legislation to ensure that the Clean Water Act continues to
be an effective tool to keep America's waters clean and our families healthy. I look forward to working closely with
the Administration and my colleagues in the Senate to enact legislation that protects rivers, lakes and wetlands and
keeps Americans' drinking water safe while providing the clear guidance that farmers, businesses, federal agencies,
and state and local governments need.
Solvency
Litigation over CWRA would generate inconsistent standards
Rob Fowler (Partner in the Environmental and Natural Resources section of Balch & Bingham LLP) and Gretchen
Morgan (a summer associate at Balch & Bingham LLP and will be a second year at the University of Alabama
School of Law), “The Clean Water Restoration Act of 2007—Got a Permit For That Puddle?” Environmental
Litigation and Toxic Torts Committee – Newsletter (a publication of the American Bar Association), Vol. 10 No. 2,
June 2008, http://www.abanet.org/environ/committees/toxictorts/newsletter/jun08/ELTT_June08.pdf
Just as appellate courts’ differing interpretations of the Rapanos decision have led to a variety of standards in the
federal circuits, a new round of litigation over the scope and meaning of the CWRA would likely produce an even
broader range of inconsistent standards throughout the United States.
(Note: Inconsistent standards would defeat one of the purposes to pass the CWRA. Currently, under the CWA and
the Supreme Court rulings, there is confusion over the CWA standards (see brink to Disad 2). Passing the CWRA
would exacerbate inconsistency and confusion; therefore, the affirmative plan lacks solvency. )
The CWRA is unspecific; this could lead to banning all sorts of water related activities
Peyton Knight (Director of Environmental and Regulatory Affairs at the National Center for Public Policy
Research), April 2008, “Sportsmen: Beware the Clean Water Restoration Act,” National Center for Public Policy
Research, http://www.nationalcenter.org/NPA567.html (ellipses in original)
Though certain activities that affect navigable waters are already regulated under the current CWA, the CWRA
would place even more activities under the regulatory microscope. This is because the CWRA not only broadens
the jurisdiction of land and water to be regulated, but leaves it to the courts and federal regulators to determine "the
fullest extent that these waters, or activities affecting these waters, are subject to the legislative power of Congress,
under the Constitution." Because specific activities are not defined in the bill, all activities could be examined and
potentially banned or regulated.
Disadvantages
General Link: The CWRA of 2009 changes “navigable waters of the United States” to “waters of the United
States”
THOMAS (Library of Congress website that makes federal legislative information freely available to the public),
“Clean Water Restoration Act (Introduced in Senate) S 787 IS 111th CONGRESS 1st Session,” Library of
Congress, http://thomas.loc.gov/cgi-bin/query/z?c111:S.787, (accessed September 10, 2009)
The Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.) is amended--
(1) by striking `navigable waters of the United States' each place it appears and inserting `waters of the United
States';
(2) in section 304(l)(1) by striking `NAVIGABLE WATERS' in the heading and inserting `WATERS OF THE
UNITED STATES'; and
(3) by striking `navigable waters' each place it appears and inserting `waters of the United States'.
(Note on the above EV: This EV may be needed to link EV mentioning the CWRA of the 110th Congress. The
CWRA introduced in the 111th Congress contains the same wording, “waters of the United States”, as the bill
introduced in the 110th Congress; therefore, the disadvantage still applies.)
1. CWRA rejects federalism
The original CWA “reflected a careful balance between the legitimate and important Federal interest in protecting
water quality and the equally important and long-standing interest of States in managing and allocating land and
water resources within their boundaries.” T&I Hearing (statement of John Paul Woodley, Jr., Assistant Secretary of
the Army, Civil Works). The CWRA rejects this careful balance of cooperative federalism in favor of the federal
government entirely at the expense of state and even local prerogatives.
2. Increased Litigation
A. Link: The CWRA will result in an increase in litigations
Under the CWRA, the Corps seemingly would also have to ascertain whether there are activities taking place that
might affect “waters of the United States,” investigate the nature of those activities and their actual effects, and then
make a jurisdictional determination. If one thing is certain, private landowners, no-growth advocacy groups, federal
agencies, and the federal courts will all have differing opinions on what activities may affect jurisdictional waters
and the extent to which those activities should be regulated. Including this language is an unnecessary and
imprudent abrogation of responsibility to articulate a meaningful statutory standard and an unabashed power grab on
behalf of the federal government. It will result in an explosion of new litigation.
B. Brink: There already is confusion and gridlock over Clean Water Act standards
EPA and the Corps adopted the position that a particular water body may be regulated under the CWA if it satisfies
either the Rapanos plurality’s or Justice Kennedy’s standard. See Rapanos Guidance. This position has produced a
variety of results in both federal circuit and district courts. “Most Courts confronting issues of what waters are
protected post- Rapanos have found that at least waters protected by Justice Kennedy’s opinion are subject to federal
jurisdiction, but not all courts have agreed with the assertion by Justice Stevens in dissent and the Bush
Administration Department of Justice that both waters protected by Justice Kennedy and by Justice Scalia are
protected under the CWA.” T&I Hearing (testimony of William W. Buzbee, Professor of Law, Emory Law School).
The regulatory community would argue that the guidance has led to confusion and regulatory gridlock.
C. Impact of litigation: Harmed economy
Litigation would harm economic growth
Likewise, there is no question that an increase in protracted litigation would combine with a prolonging of the
permitting process to slow economic development dramatically, to make some agricultural operations cost
prohibitive, and to impede much needed infrastructure and energy projects. Codifying obstacles to economic growth
would be the worst possible response to our current economic concerns.
D. Examples
Hunters could be the target of lawsuits in a post-CWRA legal environment
When Congress fails to clearly define regulatory parameters in the legislation it passes, and instead defers to the
courts to divine congressional intent, everything from the practical to the absurd becomes fair game for lawsuits.
Any land use activity that could possibly impact the "waters of the United States," as broadly defined in the CWRA,
could be subject to environmental lawsuits and regulatory scrutiny. This should be of utmost concern to hunters,
who could find themselves, and their pastime, in the crosshairs should the CWRA become law.
CWRA could create opportunities to frivolously sue shooting ranges
The CWRA would create more opportunities for environmental activist groups to sue shooting ranges for Clean
Water Act violations. No longer would a range's activities need to pose a threat to mere lakes and other navigable
waters. An intermittent stream or nondescript drainage ditch in the vicinity of a shooting range could be sufficient
ground for a crippling lawsuit.
3. CWRA expands the power of the federal government
Research, http://www.nationalcenter.org/NPA567.html
In reality, the Clean Water Restoration Act (CWRA) does not "restore" the CWA. Instead, it greatly expands its
scope and jurisdiction. The bill would bring federal oversight to activities that affect all "waters of the United
States" as opposed to merely "navigable waters" as called for in the original CWA. "Waters of the United States" is
broadly defined in the legislation to include "all interstate and intrastate waters and their tributaries, including lakes,
rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet
meadows, playa lakes, natural ponds, and all impoundments."
4. Conservation could be harmed by CWRA
(Note: The Texas Wildlife Association (TWA) is a statewide non-profit organization established in 1985 to represent
private land stewards, land managers, conservationists, hunters and anglers from across the state of Texas.)
Under the CWRA, an even wider array of basic farming practices, including habitat creation and conservation, could
be heavily regulated or restricted. According to the Texas Wildlife Association:
If the government expands its jurisdiction [under the Clean Water Act], not only will federal agencies lose their
administrative direction, but will likely create regulations that actually limit private conservation... In addition to
expanding the federal government's jurisdiction, [the Clean Water Restoration Act] eliminates permitting
exemptions for agriculture, ranching, wildlife management and forestry. The cost of permitting can be prohibitive in
terms of money and time.
5. CWRA would harm farmers and ranchers by controlling their water use
James Chilton (a 5th generation Arizona rancher, MS in economics), July 22, 2009, Testimony before the
Committee on Small Business, “With Regard to The Clean Water Restoration Act,” U.S. House of Representatives,
United States House of Representatives - Committee on Small Business,
http://www.house.gov/smbiz/hearings/hearing-7-22-09-regulating-water/Chilton.pdf
The Proposed Clean Water Restoration Act (CWRA) gives the Army Corps of Engineers (“Corps”) and the
Environmental Protection Agency (“EPA”) control over all watersheds in the nation. Since all land in the nation is
within a watershed it means that the Corps and EPA would have land use control over farmers’ and ranchers’
property and other businesses not currently under the jurisdiction of the 1972 Clean Water Act. Water for grazing,
farming, cattle and wildlife is absolutely essential to life, to economic production, and to the conservation of our
ranching heritage. Consequently, bureaucrats would control the lives and land use of farmers’ and ranchers’ private
land and grazing permits on State, Indian and Federal lands and therefore control peoples’ lives.
Extra: CWRA would harm agriculture
Reed Hopper (a principal attorney with the Pacific Legal Foundation who represented Rapanos in the U.S.
Supreme Court), April 16, 2008, “The truth about the Clean Water Restoration Act,” California Farm Bureau
Federation, http://community.pacificlegal.org/Page.aspx?pid=581
As for the claim that the "Restoration Act" will not substantially affect agriculture because "normal" silviculture,
farming and ranching practices are exempt from federal regulation or that the act will not cover ornamental ponds or
"the proverbial kitchen sink" because they are not mentioned in the act, think again. The corps interprets "normal"
not to mean what is customary for the industry, but what is customary for that particular farm or ranch, essentially
defining away the exemption. And, it is no comfort that the "Restoration Act" does not mention ornamental ponds or
"the kitchen sink" when it clearly states it covers all waters. Ironically, in its relevant provisions, the Clean Water
Act doesn't mention "wetlands" either.

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The Clean Water Restoration Act

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The Clean Water Restoration Act is a really bad idea.

Passage of the bill is likely

(Note: This post is written by Mr. Murphy on Prof. Hall’s blog)

The Obama Administration supports clarifying the Clean Water Act

Litigation over CWRA would generate inconsistent standards

1. CWRA rejects federalism

A. Link: The CWRA will result in an increase in litigations

C. Impact of litigation: Harmed economy

Litigation would harm economic growth

Hunters could be the target of lawsuits in a post-CWRA legal environment

CWRA could create opportunities to frivolously sue shooting ranges

3. CWRA expands the power of the federal government

4. Conservation could be harmed by CWRA

Extra: CWRA would harm agriculture

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