July 21, 2014

Working To Stop Federal Water Grab

Guest column submitted by U.S. Senator Mike Crapo

As hot summer temperatures are upon us, access to abundant, clean water becomes more acute.  This is especially true in western states, such as Idaho, where efforts are ongoing to balance the ever growing pressures on our water resources.  This requires balancing drinking water and food production water requirements with maintaining water for municipalities, wildlife habitat and the recreation that makes living in Idaho so enjoyable.  Under our constitutional system, the states, not the federal government, have always had primary jurisdiction over the allocation, management and use of water.  The federal government's jurisdiction has been limited under the Clean Water Act (CWA)to navigable waters. 

Now, in an unjustified manner, the federal government is seeking to assert primary jurisdiction over all waters of the United States.  In March, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) proposed a rule revising the definition of "waters of the United States" under the federal CWA.  If made final, the EPA's action would significantly expand federal authority allowing the agency to regulate nearly every stream, ditch, pond, puddle and other local water bodies.  This move threatens the nation's economy by placing onerous burdens on farming operations and small businesses.  It also would encroach on a private landowner's ability to utilize their property.   Most importantly, this proposed action undermines states' constitutional sovereignty regarding jurisdiction over water. 

Protecting water quality and our natural wetlands must be a priority, but expanding federal control over our water is unacceptable.  The EPA and the Corps state that the effort intends to provide greater clarification of which water bodies are subject to federal regulation under the CWA.  However, this proposal is nothing short of a complete federal jurisdictional grab.  It will create greater uncertainty and litigation.

The March rule is one more layer of the Administration's ongoing attempt to broaden federal jurisdiction over our waters.  This jurisdictional claim was previously attempted by the EPA and Corps and rejected by the U.S. Supreme Court, which confirmed that federal Clean Water Act jurisdiction must be based on a clear connection to "navigable waters".  Then, in 2009, proponents tried to achieve this jurisdictional expansion by statute.  I placed a hold on the bill, signaling my intention to filibuster, and we stopped it in the U.S. Senate.  Now, the EPA and the Corps are trying to do it through a proposed new regulation.

Concerns have been raised every step of the way.  I have joined Senate colleagues in opposing the expansion and urging the Administration to change course.  As part of our most recent efforts, in June, a coalition of Senators, including fellow Idaho Senator Jim Risch, and I introduced legislation that would prohibit the EPA and the Corps from finalizing the proposed rule.  Thirty-six Senators co-sponsored this legislation, S. 2496, the Protecting Water and Property Rights Act of 2014, sponsored by Senator John Barrasso (R-Wyoming).  Making the most of opportunities to advance this bill, I have and will continue to work with my colleagues to attach this important legislation to bills under consideration by the full Senate, such as our most recent attempt to file the legislation as an amendment to the Bipartisan Sportsmen's Act of 2014.

Ensuring clean, safe water is essential.  However, overregulation is not the answer.  This overreach sets a dangerous precedent.  This attempt to exert authority over water outside the scope of the CWA is an assault on private property rights and state sovereignty.  It also puts our economy and family farms in jeopardy.  I will continue to work with my colleagues in Congress to utilize opportunities to prevent this excessive step.    

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