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 # 567  

April 2008




Sportsmen: Beware the Clean Water Restoration Act

by Peyton Knight

 

Introduction and Summary

Congress is currently considering legislation that would substantially broaden the federal government's authority under the Clean Water Act.  However, like many misnamed bills before it, the Clean Water Restoration Act is a lesson in false advertising.  The Act would do more to threaten the cherished pastimes of hunters, fishermen and other outdoor enthusiasts than it would to ensure the cleanliness of our nation's water.


Background

For over three decades, the Clean Water Act of 1972 (CWA) has been mired in conflict and ambiguity.  The Act makes it a crime to discharge pollutants into the "navigable waters of the United States" without first acquiring a federal permit.  However, what began as a reasonable attempt to control water pollution in our nation's interstate rivers, lakes and streams spiraled into unreasonable federal regulation of isolated wetlands, ponds, dry lakebeds, intermittent streams and drainage ditches.

This overly expansive interpretation has resulted in much confusion, not only for landowners, but also for federal regulators.  For example, in 2004 the General Accountability Office (GAO) reported that staff from the U.S. Army Corps of Engineers, the federal agency charged with enforcing the CWA, could not agree on what was considered a protected wetland under the Act.1  One Corps official told the GAO "if he asked three different district staff to make a jurisdictional determination, he would probably get three different assessments."2

The U.S. Supreme Court finally attempted to clarify CWA enforcement by ruling that the federal government had overstepped its bounds when regulating isolated wetlands in two cases:  Solid Waste Agency of Northern Cook County (SWANCC) v. United States Army Corps of Engineers3 in 2001 and Rapanos v. United States4 in 2006.

These rulings elicited outcry from environmental activists and prompted U.S. Representative James Oberstar (D-MN) to introduce the Clean Water Restoration Act (H.R. 2421), which he claims would "restore the authority of the Clean Water Act."5  Senator Russ Feingold (D-WI) introduced a companion bill (S. 1870) in the Senate.

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."6

As Pacific Legal Foundation attorney and Clean Water Act expert M. Reed Hopper told Congress in 2007: 

This definition of federal authority [in the Clean Water Restoration Act] is not a "restoration" of congressional intent.  It far exceeds the jurisdictional scope of the current Clean Water Act as it appears in the text of the statute.  It even exceeds the extravagant scope of the existing federal regulations on which the definition is, in part, based.  Indeed, with its claim of authority over "all interstate and intrastate waters," this bill pushes the limits of federal power to an extreme not matched by any other law, probably in the history of this country.  Neither an ornamental pond nor the proverbial kitchen sink are excluded.7

The CWRA would also invite environmental litigators to flood the courts with lawsuits that challenge all activities affecting any "waters of the United States."  According to Hopper: 

[The Clean Water Restoration Act] authorizes Congress to defer to the courts to determine "the fullest extent that these waters, or activities affecting these waters, are subject to the legislative power of Congress under the Constitution."...the proposed Clean Water Restoration Act will just provide another round of intense litigation.9

At first glance, the CWRA appears to advance the interests of American hunters, fishermen and other outdoor enthusiasts, given the connection between wildlife and water quality.  In reality, the CWRA would threaten these interests.


Hunters: Beware the CWRA

Prairie potholes and sloughs, particularly those found in the prairie pothole region in the upper Midwest, constitute perhaps the best duck breeding and hunting grounds in the United States.9  As such, in 2006 nearly 1.3 million hunters flocked to North Dakota, South Dakota, Iowa, Minnesota and Montana,10 the five states that comprise the prairie pothole region.

Under the Clean Water Restoration Act, however, 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.

Both "prairie potholes" (depressed areas that temporarily hold rainwater and snowmelt) and "sloughs" (swampy depressions typically comprised of stagnant water or mud) are specifically named in the CWRA as "waters" that would be subject to regulation - a departure from the original Clean Water Act.  As a consequence, driving posts into water and mud near a prairie pothole for construction of a duck blind could constitute discharging dredged or fill material into the "waters of the United States," which is illegal under the CRA without a permit.11 

In addition, hunters who fire shot over and near prairie potholes, lakes, rivers, ponds and wetlands could be considered polluters under the CWRA.  In 1996, a U.S. District Court in New York ruled against a shooting range when it found that expended shot, even non-toxic steel shot, is considered a pollutant under the current CWA.12

Limiting or barring access to the prairie pothole region and other popular hunting areas throughout the nation would not only spoil a rich tradition, but threaten regional economies.  In 2006, hunters spent nearly $1.4 billion on hunting purchases in prairie pothole region states alone.13  In the same year, hunting expenditures nationwide totaled $22.9 billion.14

Off-road use of all-terrain vehicles or trucks, which is sometimes necessary to transport gear to hunting spots, might be forbidden or require a special permit under the CWRA.  Traversing a wet meadow or intermittent stream in a four-wheeler could be deemed a threat to the "waters of the United States."

In addition to limiting access to hunting lands, the CWRA poses a threat to the activities of hunters and wildlife enthusiasts who wish to construct food plots on their land to attract deer, ducks and other wildlife.  Clearing scrub or tilling soil to plant such plots could be barred, or require landowners to embark on a lengthy permitting process under the CWRA if the proposed plots are in the vicinity of any wetlands, drainage ditches, wet meadows, intermittent streams, ephemeral lakes or ponds.  Indeed, there is precedent for such heavy-handed regulation under the original CWA.

In 2002, in a rare 4-4 tie, the U.S. Supreme Court affirmed a lower court's ruling that a property owner had violated the CWA when he plowed his dry land in order to convert it from cattle grazing land into vineyards.15 

Robin Rivett, an attorney with the Pacific Legal Foundation who worked on the case, found the court's broad interpretation of the CWA troubling.  "Congress never intended the Clean Water Act to regulate customary farming practices or the planting of new crops," he said.16 

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.17

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. 


Fishermen and Boaters: Beware the CWRA

Like hunters, fishermen and recreational boaters would also find it more difficult to engage in their sports under the CWRA. 

For example, the construction of fishing piers and boat docks, which can already require a permit under the CWA,18 would likely see enhanced scrutiny under the CWRA.  Such construction could be regulated in nearly every instance, as nearly every body of water would qualify for federal oversight.

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."19 (Emphasis added.)  Because specific activities are not defined in the bill, all activities could be examined and potentially banned or regulated.

This means trout and small-mouth bass fishermen could lose access to their favorite rivers and streams, as wading in these waters necessarily disturbs rocks and sediment, and therefore could be considered harmful to fish and other wildlife.  Lead lures, sinkers or split-shot could be deemed pollutants.

Recreational boating could be restricted or banned in certain waters due to the incidental discharge of engine cooling water, bilge water, deck runoff or ballast water.  In fact, environmental litigators have already struck a blow against recreational boating under the current CWA. 

In 2003, several environmental organizations filed a lawsuit against the U.S. Environmental Protection Agency (EPA) for the agency's refusal to repeal its three-decade-long exemption for certain discharges, specifically, those that are incidental to the normal operation of boats, from requiring a permit under the CWA.20  According to the EPA, such exempt discharges include "any discharge of sewage from vessels, effluent from properly functioning marine engines, laundry, shower, and galley sink wastes, or any other discharge incidental to the normal operation of a vessel."21

In September 2006, the U.S. District Court for the Northern District of California ruled in favor of the environmentalists, forcing the EPA to begin regulating incidental discharges from boats by September 30, 2008.22  Though the EPA is currently appealing the court's decision, it is also preparing to implement a new CWA permitting process for all U.S. boat owners.

"Because the Court's decision is not limited to vessels with ballast water tanks," the EPA reports, "it appears to implicate an extremely large number of vessels and a range of discharges."23  The agency includes all "State-registered recreational boats" in its tally of vessels that could now require a CWA permit for operation.24

The pending regulations prompted U.S. Senator Mel Martinez (R-FL) to introduce legislation that would exempt recreational boaters from having to acquire a CWA permit simply to operate their boats.

"Requiring family boaters to secure a Clean Water Act permit so that they can wash their boat, fish, or go waterskiing is ridiculous," said Martinez.  "This permit requirement is unnecessary and onerous.  If allowed to take effect, it will be costly and essentially unenforceable."25

Considering the CWRA would encourage a courtroom examination of all activities that affect all waters of the United States, fishing, pier and dock construction and recreational boating could all come under increased fire from litigious environmental groups.


Shooting Sports Enthusiasts: Beware the CWRA

Already a target of the environmental movement, skeet and trap shooting ranges will likely see increased scrutiny should the CWRA become law.  In fact, environmental activists have already successfully sued outdoor shooting ranges under the current CWA.26 

The CWA makes it illegal for anyone to discharge pollutants from any "point source" into "waters of the United States" without first obtaining a permit.  A "point source" is typically a discernable source of pollution such as a factory discharge pipe.  However, much like the definition of "waters of the United States," what constitutes a "point source" has been subject to broader interpretation.  The EPA and courts have determined that outdoor shooting ranges loosely qualify as a "point source" of pollution into our nation's navigable waterways, and, therefore, are subject to permitting requirements under the CWA.27

EPA notes that lawsuits "have been the driving force behind most legal actions against outdoor ranges."28  For example, in 1994, the Long Island Soundkeeper Fund, an environmental organization, successfully sued the New York Athletic Club under the CWA because the club had been operating a trap shooting range on its property.  In this case, the court found that debris from clay targets and expended shot, including non-toxic steel shot, are pollutants under the CWA.  According to EPA, "Based on the court's decision... any range whose shot, bullets or target debris enter the 'waters of the United States' could be subject to permitting requirements as well as governmental or citizen suits."29

More recently, Blue Eco Legal Council, an environmental organization, filed a lawsuit under the CWA against the United States Department of Justice, Coast Guard, Navy, Marines and Department of Defense, alleging that an FBI shooting range in North Chicago is endangering Lake Michigan with stray bullets.30

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.


Conclusion

Though Representative Oberstar claims the Clean Water Restoration Act would simply restore the original intent of the Clean Water Act, the reality is much different.  By expanding the federal government's regulatory reach beyond "navigable" waters to all "waters of the United States" - including every prairie pothole, isolated pond, wetland and intermittent stream under congressional authority - Oberstar's bill would truly enter uncharted territory.  Moreover, by inviting judicial review of all "activities affecting these waters," the bill would open the door to a dizzying array of lawsuits that could challenge virtually any activity, no matter how benign, that takes place in or near any so-called "waters of the United States."

The results could be disastrous for sportsmen, our nation's frontline conservationists, who since the inception of the Sport Fish and Wildlife Restoration Programs over 75 years ago have contributed more than $10 billion for wildlife conservation efforts through excise taxes on firearms, ammunition, archery and fishing equipment.31  Hunters and fishermen annually provide more than 80 percent of the funding for most state fish and wildlife agencies,32 and in 2006 contributed over $76 billion to the economy through expenditures related to their sports.33 

Congress should not reward sportsmen with a measure that threatens to limit access to fishing holes and hunting grounds, and to heavily regulate or ban the use of boats, bullets, shot and tackle.

 




Footnotes:

1  U.S. General Accounting Office, "Waters and Wetlands:  Corps of Engineers Needs to Evaluate Its District Office Practices in Determining Jurisdiction," GAO-04-297, page 3, February 2004, available for download at http://www.gao.gov/new.items/d04297.pdf as of January 31, 2007.

2  Ibid. page 22.

3  Supreme Court of the United States, "Solid Waste Agency of Northern Cook County (SWANCC) v. United States Army Corps of Engineers Et Al.," No. 99-1178, January 9, 2001, available for download at www.epa.gov/owow/wetlands/pdf/2001supremecourt.pdf as of January 31, 2008.

4  Supreme Court of the United States, "Rapanos Et Ux., Et Al. v. United States," No. 04-1034, June 19, 2006, available for download at www.epa.gov/owow/wetlands/pdf/Rapanos_SupremeCourt.pdf as of January 31, 2008.

5  U.S. Rep. James Oberstar, "Oberstar Introduces Clean Water Legislation," May 22, 2007, available at http://www.oberstar.house.gov/index.asp?Type=B_PR&SEC={923D7A4F-1901-4602-9D76-450C13202B96}&DE={7F34C856-4D99-49BC-ACAC-677E49D8A52C} as of January 31, 2008.

6  H.R. 2421, "Clean Water Restoration Act of 2007," Section 4(3).

7  M. Reed Hopper, "Hearing on:  Status of the Nation's Waters, Including Wetlands, Under the Jurisdiction of the Federal Water Pollution Control Act," Testimony submitted to the United States House of Representatives Committee on Transportation and Infrastructure Subcommittee on Water Resources and Environment, page 6, July 17, 2007, available for download at http://transportation.house.gov/hearings/Testimony.aspx?TID=1541 as of August 24, 2007.

8  Ibid. pp. 7-8.

9  T. Edward Nickens, "The Land of a Million Ducks," Field and Stream, available at http://www.fieldandstream.com/fieldstream/hunting/photogallery/article/0,13355,1545522_0,00.html as of January 31, 2008.

10  U.S. Fish and Wildlife Service, "2006 National Survey of Fishing, Hunting, and Wildlife-Associated Recreation: State Overview," pages 9 and 13, July 2007, available for download at http://wsfrprograms.fws.gov/Subpages/NationalSurvey/2006_Survey.htm as of January 31, 2008..

11  U.S. Environmental Protection Agency, "Wetland Regulatory Authority," available at www.epa.gov/owow/wetlands/pdf/reg_authority_pr.pdf as of January 21, 2008.

12  Dr. Mitchell Taylor, "U.S. Environmental Protection Agency, "Best Management Practices for Lead at Outdoor Shooting Ranges," Chapter 1, page 1-9, June 2005, available for download at http://www.epa.gov/region2/waste/leadshot/download.htm as of January 31, 2008.

13  U.S. Fish and Wildlife Service, "2006 National Survey of Fishing, Hunting, and Wildlife-Associated Recreation: State Overview," pages 9 and 14, July 2007, available for download at http://wsfrprograms.fws.gov/Subpages/NationalSurvey/2006_Survey.htm as of January 31, 20087.

14  U.S. Fish and Wildlife Service, "2006 National Survey of Fishing, Hunting, and Wildlife-Associated Recreation," page 4, available for download at http://wsfrprograms.fws.gov/Subpages/NationalSurvey/2006_Survey.htm as of January 31, 2008.

15  Linda Greenhouse, "Supreme Court Roundup; Tie Affirms Clean Water Act's Reach," The New York Times, December 17, 2002, available at http://query.nytimes.com/gst/fullpage.html?res=9D05E7D6173DF934A25751C1A9649C8B63 as of January 31, 2008.

16 Business Wire, "Traditional Farming Practices at Risk in Clean Water Act Test Case Filed Today in U.S. Supreme Court; Pacific Legal Foundation Fights Movement to Make Farm Plow a 'Polluter,'" August 26, 2002, available at http://findarticles.com/p/articles/mi_m0EIN/is_2002_August_26/ai_90760165 as of January 31, 2008.

17 Texas Wildlife Association, "Clean Water Restoration Act," TWA Fact Sheet, available for download at http://www.texas-wildlife.org/Water%20Reports.htm as of January 31, 2008.

18 U.S. Army Corps of Engineers, New York District, "Public Notice Number: 2006-00161-YW," August 28, 2006, available for download at www.nan.usace.army.mil/business/buslinks/regulat/pnotices/200600161.pdf as of January 31, 2008.

19 H.R. 2421, "Clean Water Restoration Act of 2007," Section 4(3).

20 U.S. Environmental Protection Agency, "District Court Decision Vacating the Federal Regulation Excluding Discharges Incidental to Normal Vessel Operations from Clean Water Act Permitting as of September 30, 2008," April, 2007, available at www.epa.gov/owow/invasive_species/VesselFactSheet.pdf as of January 31, 2008.

21 40 CFR §122.3(a), available at http://frwebgate.access.gpo.gov/cgi-bin/get-cfr.cgi?TITLE=40&PART=122&SECTION=3&YEAR=2000&TYPE=TEXT as of January 31, 2008.

22 U.S. Environmental Protection Agency, "District Court Decision Vacating the Federal Regulation Excluding Discharges Incidental to Normal Vessel Operations from Clean Water Act Permitting as of September 30, 2008," April, 2007, available at www.epa.gov/owow/invasive_species/VesselFactSheet.pdf as of January 31, 2008.

23 Ibid.

24 Ibid.

25  U.S. Senator Mel Martinez, "Martinez Introduces Recreational Boating Act," September 19, 2007, available at http://martinez.senate.gov/public/index.cfm?FuseAction=PressReleases.View&ContentRecord_id=6310&Region_
id=0&Issue_id=0&CFID=4684404&CFTOKEN=99697288 as of January 31, 2008.

26  Long Island Soundkeeper Fund, Inc. and New York Coastal Fishermen's Ass'n, Inc. v. New York Athletic Club of the City of New York, 94 Civ. 0436 (RPP), available at http://www.epa.gov/region2/waste/leadshot/lisfnyac.htm as of January 31, 2008.

27  U.S. Environmental Protection Agency, "Best Management Practices for Lead at Outdoor Shooting Ranges," Chapter 1, page 1-9, June 2005, available for download at http://www.epa.gov/region2/waste/leadshot/download.htm as of January 31, 2008.

28 Ibid.  Chapter 1, pages 1-6.

29  Ibid.  Chapter 1, pages 1-9.

30  Lee Filas, "Feds Sued Over N. Chicago Gun Range," Daily Herald, January 18, 2008, available at http://dailyherald.com/story/?id=116150 as of January 31, 2008.

31  U.S. Fish and Wildlife Service, "2006 National Survey of Fishing, Hunting, and Wildlife-Associated Recreation," page vi, available for download at http://wsfrprograms.fws.gov/Subpages/NationalSurvey/2006_Survey.htm as of January 31, 2008.

32  Congressional Sportsmen's Foundation, "Hunting and Fishing:  Bright Stars of the American Economy," available for download at http://www.nssf.org/07report/PR/releases.cfm as of January 31, 2008.

33  U.S. Fish and Wildlife Service, "2006 National Survey of Fishing, Hunting, and Wildlife-Associated Recreation," page 6, available for download at http://wsfrprograms.fws.gov/Subpages/NationalSurvey/2006_Survey.htm as of January 31, 2008

 



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