Legislation has been introduced in both the U.S. House of Representatives and the U.S. Senate (HR 4965 and S 2245) that would invalidate the Environmental Protection Agency (EPA) and the Army Corps of Engineers' (Corps) Clean Water Act (CWA) guidance. While the House bill was introduced with bipartisan support, both bills need more support from farm-state lawmakers. Agricultural organizations have sent letters urging all members of Congress to cosponsor these important pieces of legislation. The American Sheep Industry Association signed on to these letters.
Despite numerous opportunities, Congress has declined to pass legislation expanding the jurisdiction of the federal government under the CWA. In both the 110th and 111th Congress, the Clean Water Restoration Act failed to garner enough support to become law. Therefore, the agencies' authority under the CWA remains limited to "navigable" waters. The U.S. Supreme Court has been very clear that the terms "navigable" and "waters of the United States" have significant meaning. While that meaning may be broader than navigable-in-fact, the terms are not so broad as to be meaningless. If the American people feel an expansion of authority is warranted, it must be made in statute, subject to passage by both houses of Congress and the president's signature. It cannot be made through informal agency guidance.
The CWA guidance will effectively remove the word navigable, wrapping into the CWA regulatory programs all waters, including stock ponds, ditches and even mud puddles. Even geographical features never containing water would become a water of the United States, making this more about the regulation of land than of water. The guidance is an end-run around Congress to accomplish a goal the agencies have not been able to accomplish through legislation. It goes beyond their authority under the CWA, does not adhere to Supreme Court decisions and will hurt the entire economy through increased regulatory costs and job losses.