Less federal control over state waters

If you spend time in Washington, you will hear endless chatter about global warming, creating the impression that Americans are clamoring for action. But according to a Gallup poll released in March, despite the tens of millions of dollars spent promoting cap-and-trade, global warming ranked lowest on the list of environmental concerns.

Congress should work on what Americans have expressed, according to the Gallup poll, as their top environmental priority: protecting water.

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One way to do that is to strengthen state authority over state waterways. When it passed the Clean Water Act (CWA) in 1970, Congress recognized the pivotal role of states in protecting water bodies. The CWA clearly states that “it is the policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution.”

State officials have intimate familiarity with their water bodies, and understand their economic and recreational uses. Yet states are being overtaken by the Obama Environmental Protection Agency (EPA), which is tilting the federal-state balance under the Clean Water Act decidedly in favor of Washington.

Last April, EPA Administrator Lisa Jackson arranged a forum to “reinvigorate” the Clean Water Act. “I want to see a huge leap forward in water quality like we saw in the ’70s after the passage of the Clean Water Act,” she said. I couldn’t agree more. Of course, we disagree on how that goal should be achieved. EPA has proposed to “increase the regulatory universe” to accelerate progress in clean water. This fits into EPA’s regulatory mindset, which holds that greater federal regulation necessarily produces greater environmental benefits. This is simply wrong.

For example, the Oklahoma Conservation Commission has found that “the voluntary aspect” of the non-point source program is “critical to its success in Oklahoma.” A regulatory program “to police all the diverse, potentially significant sources of non-point source pollution,” the commission found, “would be exceptionally difficult and expensive to implement.”

Also consider EPA’s plan to regulate the Chesapeake Bay Watershed, which could impede agriculture’s substantial progress in reducing pollution. A draft report by the National Resource Conservation Service of the U.S. Department of Agriculture found that, due to nutrient management practices, farmers have cut sediment contributions from cultivated cropland to the bay’s rivers and streams by 64 percent, nitrogen by 36 percent, and phosphorus by 43 percent.

In recent testimony before the House Agriculture Committee, Carl Shaffer, president of the Pennsylvania Farm Bureau, said: “Farmers in the Bay Watershed have been working diligently for years, if not decades, with local and state governments and other organizations, including the Chesapeake Bay Foundation, to improve farming practices in order to clean up the bay.” But EPA’s unnecessary restrictions, Shaffer stated, could upset these partnerships and “fundamentally change the face of agriculture.”

One-size-fits-all regulations issued by EPA can be counterproductive and costly. Yet this is exactly the approach EPA is taking, with help from allies in Congress. Consider the Clean Water Restoration Act (CWRA), introduced last Congress. This bill, which the Obama administration supports, would strip states of their regulatory flexibility and impose EPA’s blanket jurisdiction over nearly all water bodies.

The CWRA was introduced in response to two Supreme Court decisions, dubbed Rapanos and SWANCC (Solid Waste Agency of Northern Cook County). Those decisions in some measure helped define and restrict federal control over state waters. Supporters of the CWRA oppose these decisions on precisely those grounds — they contend the federal government should have no restrictions on the water bodies it can regulate.

Recent draft guidance from EPA reflects the intent of the CWRA, and shows the agency is ignoring Rapanos and SWANCC. According to the guidance, drafted along with the Army Corps of Engineers, “the Agencies expect that the numbers of waters found to be subject to CWA jurisdiction will increase significantly compared to practices under the 2003 SWANCC guidance and the 2008 Rapanos guidance.”

This guidance is reason enough for legislation that restricts the federal government’s regulatory reach into state waters. I plan to introduce such legislation in the near future. By clearly delineating the federal government’s appropriate role in protecting water, Congress can reset the effective balance between state and federal authority — a balance that has spurred substantial progress in protecting clean water.

Inhofe is ranking member of the Senate Environment and Public Works Committee.