Kendall County Joins Broad Opposition to federal Clean Water Restoration Act

Boerne, Texas -- Kendall County has now joined with other counties around Texas and the nation in opposition to a measure pending in the U.S. Senate, which is designed to restore and expand federal wetlands authority weakened by the U.S. Supreme Court.

Kendall Commissioners, acting with the advice of County Attorney Don Allee and at the urging of the National Association of Counties, unanimously approved a resolution calling for the defeat of Senate Bill 787, also known as the “Clean Water Restoration Act,” at their last regular session on July 13. No one present spoke in favor of the bill.

“The Clean Water Act has served as the basis for some of the most egregious and previously unprecedented assaults I've ever seen on the property rights of U.S. citizens,” said Bob Imler, a key member of both the Greater Boerne Chamber of Commerce's Governmental Affairs Council and the Kendall County Economic Development Corporation.

“It illustrates the unintended consequences of turning government bureaucrats loose on private citizens and private property owners armed with broad regulatory authority and virtually unrestrained by any system of checks and balances.”

SB 787 would give the Environmental Protection Agency and the Army Corp of Engineers potential regulatory authority over all “waters of the United States,” including but not limited to stock tanks, seasonal creeks, gutters and drainage ditches.

While the original act applied only to “navigable” waters, federal agencies had taken an increasingly expansive view of what constituted a “navigable” waterway or holding area. That changed in 2001, when the U.S. Supreme Court ruled that non-navigable, intrastate waters cannot be regulated under the Clean Water Act solely because they serve as a habitat for migratory birds.

Critics of the decision claim it forced federal regulators to ignore acts of pollution that would have been prevented prior to the ruling. SB 787 is designed to address those concerns and has the backing of a large environmental coalition, ranging from the left-leaning Earthjustice to more traditional organizations like Ducks Unlimited.

"This is a huge step toward restoring the Clean Water Act's safety net for prairie potholes and well over 20 million acres of wetlands throughout the United States that provide critical habitat for waterfowl and other fish and wildlife," Ducks Unlimited Executive Vice president Don Young said in a statement urging passage.

But the bill has also stirred up a hornets' nest of opposition from private property rights advocates, municipal, county and state governments, ranchers and private developers. In addition to the National Association of Counties, opponents include the U.S. Chamber of Commerce, the American Farm Bureau, the National Cattlemen's Association and the National Association of Home Builders.

The conservative Heritage Foundation calls the bill “an open invitation for federal regulators or environmental organizations filing lawsuits to shut down any use of land that they don't like as long as there is a little water somewhere in the vicinity.”

Imler says the bill would give federal regulators unprecedented authority to limit private land use, to curtail legal activities like hunting and fishing and to delay or halt public and private construction projects, while making all of those activities targets for new lawsuits.

“The business community here is trying along with city and county government to advance things like the Herff Road extension, transportation infrastructure and a new sewage treatment plant,” Imler said. “These are all public works projects that an expansion of the Clean Water Act could, at the very least, stall and quite possibly require to be moved.”

The Senate and Environmental Works Committee recently approved an amended version of SB 787 by a straight-party vote, with all 12 Democrats voting yes and all seven Republicans voting no. Supporters accepted an amendment offered by Sen. Max Baucus, D-Montana, that would exempt waters on “converted cropland” and wastewater treatment systems from the act. Exactly what constitutes converted cropland, however, would still be subject to final approval by federal regulators and, ultimately, the courts.

“The problem is that it ends up being very expensive, you end up in court and you may or may not win,” Imler said.

While Democrats hold a 60-40 senate majority, the bill still faces rough sledding. Sen. Mike Crapo, R-Idaho, has placed a hold on the bill and plans to filibuster, or talk it to death, if it reaches the senate floor. Democrats from more rural and conservative states could also jump ship, making it impossible to end any filibuster.

Senator Jim Inholfe, R-Oklahoma, calls S. 787 “part of a hostile agenda aimed squarely at rural America,” and predicts it “faces certain demise” if it reaches the senate floor.

If it does pass the senate, it would almost certainly become law, given the Democrats' large majority in the House and support from President Obama.

Many opponents of the bill, including the TSCRA, have characterized it as a federal "land grab."Mike Reeder, Hill Country View