December 18, 2009 – One Word, ‘Navigable,’ Muddies Water Bill

WASHINGTON — One word can make all the difference, especially in the complex and contentious field of water law.

Currently, the Clean Water Act bans dumping pollutants into “navigable waters” of the United States. But disputes about what “navigable waters” actually means have gone to the U.S. Supreme Court twice in the past eight years. The court decisions have created confusing regulations and resulted in scaled-back federal protections for many wetlands and intermittent streams.

But a bill intended to clear up the confusion has drawn the ire of Western Republicans and Oregon county commissioners, who say the measure may lead to regulation of nearly invisible streams and tiny farm ponds. That’s unlikely, according to Democrats, who say they’re just trying to restore the law to where it stood before 2001.

This month, 28 Western-state Republicans, including U.S. Rep. Greg Walden, R-Hood River, sent a letter to Democratic House and Senate leaders, warning them to not attach the bill to other legislation.

“We cannot imagine any bill so important that we could support it with the Clean Water Restoration Act attached,” they wrote. “This bill will … build an even more expensive, cumbersome bureaucracy which will increase delays in securing permits and slow or stop vital economic activities all across the country.”

The bill has passed the Environment and Public Works Committee in the U.S. Senate but hasn’t been introduced in the U.S. House. A rumor that Democrats might try to rush the bill through the House before the end of this year prompted the Republican letter, but a spokesman for the House Transportation Committee said that it won’t begin to move forward until sometime next month.

“The reality of the situation is that the calendar doesn’t really give us the time we need,” said Transportation Committee spokesman Jim Berard. “We got the word late last week to wait until after the first of the year to work on this.”

If the bill does become law, it may have less impact in Oregon than elsewhere because the state Department of Environmental Quality already regulates nearly every conceivable water body, said Teresa Huntsinger, program director for clean and healthy rivers at the Oregon Environmental Council. The state DEQ also administers the Clean Water Act on behalf of the Environmental Protection Agency in most cases.

“The state definition of waters of the state is actually quite broad,” Huntsinger said. “We haven’t really been affected by the confusion in the recent years because we do have this broad definition.”

The amendment is unlikely to change regulations much for Oregon landowners, said Jennie Bricker, a top water law attorney with Stoel Rives LLP in Portland. If a stream were to come under federal jurisdiction, on top of state, a landowner would simply have to file a joint application to two agencies, she said.

“(Without federal jurisdiction), it doesn’t mean you can just go about your business and just fill wetlands all day long,” Bricker said.

Removing the word navigable also shouldn’t mean much to landowners at this point.

“It doesn’t add much in that context to say navigable, that just doesn’t mean much any more because of how the cases have turned out.”

The Association of Oregon Counties, though, is opposing the bill, on the grounds it could cause an expansion of water laws, said Gil Riddell, who analyzes natural resources issues for the association.

Crook County Judge Mike McCabe agreed that he doesn’t want to take the chance that more streams will be regulated by the federal government for storm runoff. The reintroduction of endangered fish into Crook County streams has led to new worries about storm runoff from Prineville and Crook County reaching those streams, McCabe said.

“Really the big thing that triggered it for us was the introduction of salmon and steelhead into a couple of our creeks,” McCabe said. “That makes the storm runoff a lot more of an issue.”

To allay concerns by agricultural interests, the Senate bill explicitly exempts farms and other agricultural operations from the extended Clean Water Jurisdiction.

U.S. Sen. Jeff Merkley, D-Ore., voted for the bill in the Environment and Public Works Committee earlier this year and said it will reverse the court decisions that put “many of the very places where millions of Americans get their drinking water at risk.”

It may be nearly impossible to predict the law’s broader effect until the courts weigh in, said Reed Marbut, who teaches water law at Willamette University in Salem.

“Yes, it would be an impact; how much of an impact would be hard to say because it’s very much a case-by-case determination,” Marbut said. “It would expand the kind of water bodies (covered by the Clean Water Act) and thus expand the burden on landowners, but it would also mean cleaner water and more protections for fish.”

Bend’s Mirror Pond is one body of water that is unlikely to be impacted if the law passes. The Army Corps of Engineers is already one of a long list of government agencies that’s weighing in on a potential dredging project there. And if the EPA were to become involved, it wouldn’t change things much, said Ryan Houston, executive director of the Upper Deschutes Watershed Council.

“There are so many agencies involved already, that if one more comes to the table, I don’t know if it changes the practical reality much,” Houston said.

Keith Chu can be reached at 202-662-7456 or at kchu@bendbulletin.com.

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Published Daily in Bend Oregon by Western Communications, Inc. © 2009