For the fourth time in six years, legislation has been introduced in Congress - Senate Bill 787, the Clean Water Restoration Act of 2009 - to extend federal jurisdiction over an estimated 20 million acres of wetlands, tributary and isolated waters, prairie potholes, and mudflats. The U.S. Supreme Court, in Rapanos v. United States, 126 S.Ct. 2208 (2006) held that these types of waterbodies are generally outside federal jurisdiction and are regulated instead by state and local governments. The purpose of the bill is to extend jurisdiction over them by replacing the term "navigable waters" in the CWA with the term "waters of the United States," which is broadly defined as:
all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing, to the fullest extent that these waters, or activities affecting these waters, are subject to the legislative power of Congress under the Constitution.
According to Texas cattle ranchers, if passed, the bill would give the federal government regulatory authority over stock tanks, drainage ditches and any water features found on family ranches requiring cattle producers to manage around puddles in pastures, drainage areas, road ditches and more. (Weatherford Democrat article about the Texas Cattle Ranchers' position.) If they are unable to demonstrate proper management, they could be required to get a permit. This bill also redefines "fill" to exclude mining waste, which would eviscerate the Supreme Court's CWA opinion discussed above. Although similar legislation has failed in the past, this time the bill has the support of the Obama Administration.