Senators Act on Clean Water Restoration Act

Yesterday, in a mere one hour and seventeen minutes, the Senate Environment and Public Works Committee sailed through S. 787—the Clean Water Restoration Act (CWRA). This bill would remove the word “navigable” from the Clean Water Act, expanding the federal regulatory power under the Clean Water Act (CWA) to include such things as puddles on farms and other private property around the nation. For background on this legislation see my prior blog post, this site, and this press blog. Former CEI staffer, Jonathan Adler, also delivered very good testimony on these issues as well last year.

The final bill was a slightly modified alternative amendment worked out yesterday by Sens. Max Baucus (D-Mt.), Amy Klobuchar (D-Minn.), and Barbara Boxer (D-Calif.) This Baucus “compromise” is largely window dressing, maintaining the existing Clean Water Act exemptions for some agricultural activities in the new CWRA. This was to lure farmers into supporting the CWRA. At best it might have gained them one farm organization.

Senators James Inhofe (R-Okla.), David Vitter (R-La.) and John Barrasso (R-Wyo.) were heroic in their efforts to defend private property rights and states’ water rights and prevent most of the American land and water from effectively being federalized/nationalized.

Inhofe said in his opening statement that the bill represents a dagger aimed right at the heart of rural America, but that there was no way to stop it in committee. He vowed a very robust effort to defeat it on the floor.

Vitter submitted two amendments. One would allow the president to override the CWRA in the case of natural disasters such as hurricanes, so that recovery efforts would not be delayed or halted. Boxer said public health would be compromised if exemptions were provided. Senator Thomas Carper (D-Del.) said Vitter’s amendment would undermine the intent of the bill.

Boxer and Carper argued they weren’t expanding any government authority–simply returning to the authority of the CWA as it was prior to the SWANCC and Rapanos Supreme Court decisions. Boxer repeated that theme over and over. For more information on these decisions see this paper of Jonathan Adler.

Vitter responded that it restores nothing that was ever in the CWA–instead it returns to the vastly expansive definition of navigable which federal bureaucrats had achieved in order to usurp powers not granted to the federal government (such as the migratory bird rule, the “glancing goose test”), which was why the Supreme Court had to step in and point out that navigable meant navigable.

It was defeated on a voice vote.

Vitter offered another amendment to include language that the use of mosquito control pesticides would never be required to obtain permits under the CWRA. This provision would allow that mosquito control efforts to prevent control of diseases such as West Nile. There have been movements to require such permits and there are currently cases in court. This too was defeated on a voice vote and a roll call vote. [more hotlinks]

Barrasso then offered a series of amendments, basically aimed at restricting the vast new “wetlands” listed as waters of the US.

His first amendment was to prohibit the federal government from taking over all streams and intermittent streams within a state. He explained: “No one in Washington D.C. has the right to seize and control our streams.” They are already adequately protected under state laws. Under this bill, streams that only flow when storm water runoff fills them would be placed under control of Washington. This one was defeated on voice vote. Other defeated Barrasso amendments included:

•An amendment was designed to prevent Federal government from taking all mudflats in the 50 states.
•An amendment to prevent US takeover of all prairie potholes in the states, with vast numbers being on private farmland and ranchland.
•An amendment to prohibit federal takeover of all wet meadows.
•An amendment to prevent EPA takeover of all natural ponds.
•An amendment to protect and exempt agriculture under the CWRA.
•An amendment that would prohibit controls on animal farming: cattle, sheep, goats, fish, crawfish, etc.
•An amendment that would require that specific language be inserted in the bill to clearly exempt ground water from the regulatory authority of the CWRA.

The fact that all these were defeated, just goes to show the extensive regulatory scope of this bill. Inhofe asked that his name also be attached to all of the amendments.

Midway through these amendments Boxer asked Barrasso if he had any more amendments. He responded yes. She replied “Boy you are a glutton for punishment.” So much for respect for property rights and the Fifth Amendment.

Then Boxer called for the vote on S.787 as amended and it very quickly passed 12-7 on strict party lines.

Now we wait to see what happens in the Senate and what Rep. Jim Oberstar (D-Minn.) does in the House.

Senator Inhofe said in committee that there is no chance of the CWRA passing on the Senate floor. And in a post-mark-up press release reiterated: “The CWRA faces certain demise if it ever reaches the Senate floor.”

Also Senator Mike Crapo (R-Idaho) placed a hold on the bill.

Let’s hope that Senator Inhofe’s optimism is well founded.

Photo Source and caption: USAF, carries the caption: “Airman 1st Class Corey Turpin, 28th Civil Engineer Squadron pest management apprentice, tosses larvicide into a pool of water, May 14. The larvicide keeps mosquitoes in their larvae stage to stop them from maturing. (U.S. Air Force photo/Senior Airman Anthony Sanchelli).”  Such mosquito control activities could become very difficult under the Clean Water Restoration Act.