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Clean Water - It's Not Government Over-Reach

by Dan Nelson


Winston Churchill once said, “You can always count on Americans to do the right thing -- after they’ve tried everything else.”

The Clean Water Act (CWA), which became the law of the land in 1972, is proof Churchill was right. By the late 1960s pollution was so bad that rivers were burning, many lakes were incapable of supporting aquatic life and a growing number of municipal water supplies contained chemicals that exceeded established health limits.

Those concerns and others like them prompted Congress to pass the CWA and override President Richard Nixon’s subsequent veto. It wasn’t just the right thing to do, it had become the absolutely necessary thing to do.

The CWA probably didn’t go far enough in protecting the country’s waters, but it did restore degraded lakes, rivers and streams and protected the wetlands so essential groundwater supplies and wildlife. CWA was recognized as one of the most successful pieces of legislation of the 20th century.

Today the CWA is under attack, and North Dakota is leading the charge. Here’s what’s been happening:

One of the original goals of the CWA was that “the discharge of pollutants into the navigable waters be eliminated by 1985.”

Taken literally, that section would suggest it’s OK to dump anything you want into a small stream or wetland so long as it’s not navigable, but that wasn’t Congress’ intent. You can’t run a Celebrity Cruise ship up a creek, but that doesn’t mean it’s not covered by the CWA. The law actually covers all waters with a “significant nexus to navigable waters” because, as everyone knows, water runs downhill.

The only way to protect navigable waters is to protect the wetlands, streams, watersheds, potholes and other waters that feed them. Make sense?

Let’s look at that another way: Try explaining to a rancher that it’s OK to toss a lit cigarette into a ditch adjacent to his 50,000-acre pasture on a hot, windy fall day so long as you don’t toss it directly into the grassland itself. If the wind carries the flame to his pasture and destroys it -- que sera. Good luck making that argument.

The confusion arose with the Supreme Court’s 2001 Solid Waste Management of Northern Cook County (SWANCC) v. the Corps of Engineers and the 2006 Rapanos v United States decision. In SWANCC, the court ruled the Corps of Engineers overstepped its authority to use the “migratory bird rule” to requiring permits for filling wetlands.

On the surface, the SWANCC decision seemed to favor developers, and in that very specific instance, it did. But neither SWANCC or Rapanos provided clear guidance on which waters come under EPA jurisdiction and which don’t.

In writing their opinions on the Rapanos case, three justices urged the Environmental Protection Agency (EPA) and the Corps of Engineers to draft rules clarifying the intent of the original law, which they have done.

The task was to identify, based on the court’s rulings, which waters remain under the EPA’s jurisdiction, which do not and which require a case-by-case analysis to determine if CWA rules apply.

In 2013 the EPA released a draft report based on peer-reviewed literature on the connectivity of streams and wetlands relative to larger, navigable, waters. The report was then reviewed by the EPA’s Science Advisory Board (SAB) for comment.

The SAB agreed, with some technical reservations, about the connectivity of waters, particularly that streams and wetlands in floodplains are physically, chemically and biologically connected to downstream navigable waters.

In March of 2014 the EPA and the Corps announced their rules proposals defining the scope of waters to be protected under the CWA. Based on the outrage from opponents, one would have supposed the law being completely re-written and was filled with draconian regulations. That was hardly the case.

Opponents of the proposed rules cited job losses and harm to the economy -- the same objections made by Nixon in ’72. Predictably, some members of Congress, including North Dakota’s Congressional delegation, stepped up in opposition to the proposed rules.

The House of Representatives recently passed a bill that would force the EPA to withdraw its rules on what constitutes the “waters of the United States” and develop a new proposal, one that’s friendlier to developers, energy companies and agriculture. In other words, one that guts the CWA.

Opponents of the rules trotted out all the reliable straw men and hobgoblins always enlisted to oppose efforts to protect water, grass and air -- you know, the stuff humans need to survive.

The proposed rules are being portrayed as “the biggest land grab in the history of mankind,” “an attempt to regulate the raindrops off the brim of your hat” and that reliable old favorite, “government over-reach.”

In reality, the rules only clarify the intent of a law that’s been on the books since 1972. For the most part, the proposed rule does not enlarge jurisdiction over waters beyond the Supreme Court’s reading and would actually reduce jurisdiction over some waters.

Many politicians and special interests disagree, claiming -- with straight faces -- that the feds will be monitoring our bird baths and arresting us for urinating behind a tree. Those claims, which one scribe called Onion-worthy, would be laughable if they weren’t so sad.

Environmental organizations and sportsman’s groups quickly embraced the rules. One hundred-eighty-five outdoor organizations, from the Theodore Roosevelt Conservation Partnership and the National Wildlife Federation to Trout Unlimited and the Izaak Walton League of America, sent a letter to the EPA expressing their support.

A 140 percent increase in the rate of wetland loss between 2004 and 2009 is one reason sportsmen support the CWA. In 2009 the Prairie Pothole Region contained fewer of the temporary and seasonal wetlands so vital for duck production than it did in 1983, a time when the mallard and total-duck populations were in collapse.

This battle has been raging for more than a decade, and the dirty-water crowd has been winning every step of the way. After the SWANCC decision some members of Congress introduced the Clean Water Restoration Act, which would have restored the long-standing protections intended by Congress back in 1972.

Championed by the late Rep. Jim Oberstar of Minnesota and Sen. Russ Feingold of Wisconsin, the CWRA remained bottled up in committee while opponents mounted a campaign against it.

The dirty water lobby even tried to influence the sportsmen who back in ’72 rallied around the Clean Water Act. One of the most obscene examples of the shameless demagoguery appeared in an article called “Sportsmen: Beware of the Clean Water Restoration Act,” which said, in part:

“Under the Clean Water Restoration Act, something as simple as constructing a duck blind on private land on or near these prime hunting waters could require hunters to submit to a costly and time-consuming permitting process.”

The article claimed hunters shooting over prairie potholes could be fined for pollution, even when using non-toxic shot. I’m not sure which is more offensive, the inflammatory hyperbole or the fact that many hunters were naive enough to believe it.

The bill making the rounds in Congress isn’t about keeping an over-reaching government from usurping property rights from hardworking citizens, it’s a transparent attempt to unravel a law that since 1972 has been protecting the nation’s most priceless an irreplaceable asset, its water.

Horror stories about the pollution of water supplies abound. Now, more than ever, the country needs a strong, effective Clean Water Act. •