Ag Policy Blog

The U.S. Senate Tuesday rejected a proposed amendment to the Water Resources Development Act or WRDA that would have prevented the finalizing of a jurisdictional guidance to extend the number of water bodies subject to the Clean Water Act.

The amendment offered by Sen. John Barrasso, R-Wyo., would have prevented the implementation of the guidance that is expected to expand EPA's reach into more waters of the U.S.

The document that would be used by U.S. Environmental Protection Agency and Army Corps of Engineers personnel to make CWA determinations is under review by the Office of Management and Budget. In addition, EPA continues to undergo a rulemaking process.

In April 2011 then-EPA Administrator Lisa Jackson indicated that the new guidance could provide protection from water pollution for some additional 117 million Americans. EPA officials recently have insisted that the new guidance would not bring additional waters into Clean Water Act jurisdiction, despite Jackson's statements made to the press.

National Cattlemen's Beef Association Deputy Environmental Counsel Ashley McDonald said in a statement Wednesday that members of Congress don't seem to understand what the guidance document will mean to U.S. farmers.

"It is a tragedy that those who voted against this amendment refuse to recognize the devastating effect this guidance will have on farmers and ranchers across the country," he said.

"If finalized, it would be the biggest federal land-grab in history, requiring cattlemen to apply for permits to conduct everyday activity such as cleaning out a ditch.

"Congress, to date, has refused to clarify what constitutes a 'water of the United States' despite the Supreme Court's multiple calls to do so. Without such clarification, the Obama administration has taken great liberty in crafting guidance that through ambiguous and ill-defined terms allows EPA to claim that any water body is a 'water of the U.S.'

"This administration has taken the phrase 'what you can't legislate, regulate' to new heights. Their current interpretation of what constitutes a 'waters of the U.S.' is not only incorrect based on Supreme Court precedent, but flies in the face of the CWA's plain language."

Martin Hayden, Earthjustice vice president for policy and legislation, said in a statement that the guidance document is necessary for clean water.

"The Senate's rejection of Sen. Barrasso's dirty water amendment is a reassurance that even in a time of undue corporate polluter influence over our political system, the wants and needs of the American public can prevail," he said.

"It's unconscionable that some of our elected leaders think it's OK to attempt to gut the very safeguards that keep our water safe for our families to drink and swim, fish and recreate in. But today those pro-polluter efforts failed, and our waters and communities will be safer and cleaner for it.

"Instead of taking swipes at our essential clean water and public health safeguards, our elected leaders should be strengthening our protections and working to guard our communities from toxic dumping and dangerous pollution. We hope the Senate continues to work for clean water, and that the Obama administration restores the protections to these streams and wetlands without any further delay."

In last year's U.S. Supreme Court ruling in Sackett v. EPA where the court ruled that an Idaho family should have had the right to appeal an EPA Clean Water Act determination on their property before penalties were assessed, Justice Samuel Alito wrote in his opinion that the Clean Water Act does not properly define 'waters of the U.S.' and that Congress should act to make it clear.

"Real relief requires Congress to do what it should have done in the first place: provide a reasonably clear rule regarding the reach of the Clean Water Act," Alito wrote.

"When Congress passed the Clean Water Act in 1972, it provided that the Act covers 'the waters of the United States.' But Congress did not define what it meant by 'the waters of the United States;' the phrase was not a term of art with a known meaning; and the words themselves are hopelessly indeterminate.

"Unsurprisingly, the EPA and the Army Corps of Engineers interpreted the phrase as an essentially limitless grant of authority. We rejected that boundless view, but the precise reach of the Act remains unclear."

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