Don’t allow the feds to control state water

For some members of Congress and a few environmental groups, there has long been a troublesome fact about water in this country: States control most of the water within their boundaries, not the federal government.

That would change, however, if the latest legislation to update the federal Clean Water Act were to become law.

We sincerely hope it doesn’t, at least not in its present form. And we were pleased to learn last week that both of Colorado’s senators, Democrats Mark Udall and Michael Bennet, oppose the legislation as it’s now written.

Readers may reasonably wonder: What’s wrong with the legislation?

First, the bill as introduced in March by Sen. Russ Feingold, D-Wis., changes a key word in the federal clean water rules. When they were adopted in 1972, the legislation gave federal agencies regulatory authority over all the “navigable” waters of the United States. That, in itself, was very broad and was the source of much legal dispute.

But Feingold’s proposed update would change that to expand federal regulatory authority to all of the waters of the United States. As Chris Treese with the Colorado River Water Conservation District put it, that means the legislation would affect “everything that is wet, ever was wet or ever might be wet.”

Secondly, the Feingold legislation adds new language regarding pollution or potential pollution from “activities affecting these waters.”

As the Western Business Roundtable noted in a message to its members, the language in the bill would “Give the federal government unprecedented veto power over local land-use decisions.”

The National Water & Conservation Alliance, a group formed specifically to fight Feingold’s bill,  was even more blunt. “This bill is not about clean water,” it said. “It’s about governance. Its aim is top-down, command and control of land, water, people and communities.”

We don’t know if that was the primary intent of Feingold and his cosponsors in the House and Senate. But it is clear that his bill, S. 787, would substantially expand the federal government’s regulatory over water in every other state in the union. In Colorado, the bill could create havoc with the state’s 130-year-old system of water rights based on legal priority and protection of existing rights.

An update of the Clean Water Act, with some clarification of existing language, is certainly needed.

But Feingold’s plan is not the answer. We hope senators from across the country will join Udall and Bennet to oppose it.


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