Federal Land Grab: Proposed change to water law riles landowners!

WASHINGTON - May 22, 2008 - A proposal backed by environmentalists to change one word in the Clean Water Act and subject tens of millions more acres of land to new federal oversight has ranchers and farmers fuming.

"It's a huge grab for more federal intervention in our lives, and we don't need that," says Montana cattle rancher Randy Smith says.

Smith sometimes diverts water on his 20,000-acre spread for the sake of his animals or crops. He worries that doing so under a new law will mean lots of paperwork, lawyers and site visits rather than a few scrapes of a backhoe.

"We're perfectly capable of doing what's right for the land," says Smith, who has 1,000 head of cattle in Glen. "We know that if we don't take care of it, we won't take care of our animals."

Jim Murphy, a lawyer for the National Wildlife Federation, says the law must be revised to protect not only the water on the lands at issue but the waters they flow into. He says the waters and wetlands now outside the scope of the law "provide incredible functions to the health of all watersheds" and are valuable as aquatic habitats, sources of drinking water and flood prevention.

The Clean Water Act of 1972 makes it illegal to pollute "navigable" waters. Over the decades, disputes arose over the government's expanding definition of "navigable," and some landowners complained that the word was being interpreted too broadly.

Two Supreme Court decisions in 2001 and 2006 came down on the side of landowners, ruling that ponds at the bottom of a gravel pit and a marsh miles from any lake or river were not navigable and thus not subject to the act.

The rulings removed important waterways from federal protection, say Sen. Russ Feingold of Wisconsin and Rep. Jim Oberstar of Minnesota. The two Democrats have sponsored the Clean Water Restoration Act, which would change the wording of the Clean Water Act from covering "navigable" waters to covering "waters of the United States."

The new definition would place under federal oversight all water subject to the ocean tides as well as "lakes, rivers, streams, mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds and all impoundments," also known as man-made reservoirs.

Murphy says the new language would cover an additional 20 million acres; the Illinois Farm Bureau says it would be more like 55 million acres.

Feingold says the word change is in keeping with how the Clean Water Act had been interpreted and enforced over the years. Zach Lowe, Feingold's spokesman, says the bill is needed to protect the water quality of thousands of tiny lakes and streams in the Lower 48 states.

As an example, they cite the October reversal by a U.S. appeals court of a conviction against Birmingham, Ala., pipe manufacturer McWane for polluting a creek in Alabama. Citing the recent Supreme Court rulings, the appeals court said the creek was not navigable; for a conviction to stick, prosecutors needed to prove the pollution affected the Black Warrior River 20 miles downstream.

Garry Miller, chief civil engineer at the Jefferson County Storm Water Management Authority, says the ruling shows a change in the law is needed.

"The locals sometimes don't have the teeth in their local ordinances, and they look for help," Miller says.