Attorney fears federal revision will engulf U.S. (with Clean Water Act)

Proposed legislation broadens legal definition of waters of the U.S.’

FOLLOWED by Comment Period Extension

(Oppose Clean Water Act expansion..go HERE for details, HERE to write letter.)

By PATRICIA R. McCOY Capital Press 12/7/07 BOISE — The proposed revision to the Clean Water Act will so broaden the definition of the definition of waters of the United States that it may include backyard swimming pools, according to one critic. Even if federal officials don’t try to manage backyard swimming pools through the Clean Water Restoration Act of 2007, environmental activists and the courts could conceivably do so, said Scott L. Campbell, Boise attorney specializing in water law. “The proposed legislation could be better named the Endangered Species Act on Steroids, or The Big Lie,” Campbell told about 200 water managers, irrigators and attorneys at the annual Water law and Resource Issues Seminar Nov. 30.

Language in the proposed bill extends CWA protection to all waters of the U.S. “to the fullest extent of the legislative authority of Congress under the Constitution,” Campbell said. All references to navigable waters are struck.

“The proposed legislation specifies in the future that waters of the United States mean all waters, including all interstate and intrastate waters, intermittent streams, mud flats, wetlands, sandflats, natural ponds and impoundments of the foregoing,” he said. “That could include backyard swimming pools or even a mud puddle in the middle of the city of Boise.

“In the 25 years I’ve practiced water law, I’ve seen many cases filed by environmental activists come out of the 9th Circuit Court of Appeals with absurd results,” he said. “This proposed legislation is incredibly bad.

“I truly believe if this becomes law, we’ll talk more about the Clean Water Restoration Act of 2007 than the Endangered Species Act. People like me will be very, very busy.

“The National Water Resources Association, which I chair, opposes this bill. We succeeded in getting some people representing our point of view on the panels for a congressional hearing originally scheduled for Dec. 6,” he said. “That hearing has been postponed until sometime next year.”

Campbell urged those at the seminar to write letters opposing the bill to members of Congress.

The seminar was sponsored by the Idaho Water Users Association.

Speakers covered a wide variety of topics, from the status of current lawsuits over salmon recovery and the new draft Upper Snake biological opinion to the Endangered Species Act. Speakers discussing impacts of the ESA included Sonya D. Jones, an attorney with Pacific Legal Foundation in Bellevue, Wash., who said she never dreamed she’d build her legal career on fish.

“We cannot continue to hold species as higher than human beings, but that’s exactly what’s happening in the Pacific Northwest. It amazes me,” Jones said.

One problem is the great job environmentalists have done of convincing the public that wild and hatchery fish are different species, she said.

“The environmentalists have more money, and they’re bigger. They’ve convinced everybody up front that there’s a difference in these fish, when there’s none at all,” she said. “Judges read the newspapers, so they believe it, too.”

Staff writer Pat McCoy is based in Boise. E-mail: pmccoy@capitalpress.com.

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Public comment period extended

The Environmental Protection Agency and the U.S. Corps of Army Engineers have extended the public comment period on the scope of the agencies’ jurisdiction under the Clean Water Act.

The agencies’ guidance comes as the result of two U.S. Supreme Court decisions, which some say eroded the strength of the Clean Water Act.

Comments on the agencies’ guidance issued in June are now due by Jan. 21, 2008.

The guidance calls for a strong regulatory program that ensures no net loss of wetlands, which is one of three key elements to the Bush administration wetlands policy.

The other two elements include a management program that will result in the restoration, enhancement and protection of 3 million acres of wetlands by 2009 and a commitment to conserve isolated wetlands such as prairie potholes.

During the early implementation of the guidance, the agencies are inviting public comments on case studies and experiences in applying the guidance.

Within nine months after the guidance has been issued, the agencies intend to either reissue, revise or suspend the guidance after considering comments and field experience with putting the guidance into place.

— Cookson Beecher

Information www.epa.gov/owow/wetlands/guidance/CWAwaters.html  

Submit comments to docket EPA-HQ-OW-2007-0282 through www.regulations.gov