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Re: CleanWater Act from Family Farm Alliance

P.O. Box 216 Klamath Falls, Oregon 97601
July 6, 2007

Dear Member of Congress:

On behalf of the members of the Family Farm Alliance (Alliance), I write to strongly urge you to
oppose the “Clean Water Authority Restoration Act of 2007,” (CWARA), as introduced by
Congressman James Oberstar (D-MN). Although its intent may be otherwise, this bill may actually
create more uncertainty and confusion over the application and interpretation of the Clean Water Act
(CWA), thereby contributing to litigation and leaving more interpretations to the courts and
regulatory agencies.

The Alliance advocates for family farmers, ranchers, irrigation districts and allied industries in 17
Western states to ensure the availability of reliable, affordable irrigation water supplies. Our
members use a combination of surface and groundwater, managed through a variety of local, state,
and federal arrangements.

CWARA would appear to grant the U.S. Environmental Protection Agency (EPA) and the U.S.
Army Corps of Engineers (Corps) unprecedented regulatory control over all “intrastate waters” –
which some will interpret as essentially all wet areas within a state. Importantly, it fails to clarify any
limits on this expanded and uncertain authority.

We are also gravely concerned about the broader implications associated with the redefining of
“navigable waters” contemplated by this bill. There is already confusion over the waters to which
Section 404 of the CWA applies; CWARA raises concerns regarding jurisdictional determination
that apply to the entirety of the CWA. Rather than clarify jurisdictional questions, CWARA would
create still more uncertainty as to even routine activities such as pumping irrigation water from one
area to another. Such implications could have huge ramifications for simple operations that do not
adversely impact the water quality of U.S. rivers and streams.

CWARA fails to recognize the primary right and responsibility of States to control local water use
decisions, which appears to be inconsistent with Section 101(b) of the existing CWA. It also does
not explain how an expanded federal presence in the water quality arena will impact the existing
state processes that are already addressing the same issues CWARA purports to address. It is not as
if there is a vacuum of clean water regulations; state regulatory processes are in place and they are

Further, as the number of waters subject to federal water quality standards increases, untold time and
resources will be spent at the local level dealing with the Corps and EPA, further encumbering a
system that is already known to be overburdened and less then responsive. This adds yet another
degree of uncertainty to farmers and ranchers who require a reliable water supply in order to secure
operating loans and other types of financing. To avoid this unintended but certain outcome, new
CWA legislation should instead more narrowly and clearly define existing authority.

Already, unnecessary restrictions have been placed on private landowners trying to use their
property and on the ability of local agencies to operate and maintain man-made canals and ditches.
Also, as more Westerners look at agricultural waters to supply future municipal needs, more water
treatment plants are being built off rivers and canal systems to treat surface water to drinking supply
standards. For these interests, the CWARA could produce additional Section 404 permitting and
delays, further impeding the exercise of vested property rights and food production, and disrupting
the ability to efficiently move water to treatment plants.

As but one example, consider the routine maintenance of the thousands of miles of existing ditches
and canals in the West that transport water for agricultural, municipal, and industrial uses. These
facilities - some over a century old - require continual maintenance in order to serve the functions for
which they were constructed. Such maintenance activities include routine activities like replacing
concrete panels and riprap, stabilizing channels and channel banks stabilization, connecting pipes,
and controlling aquatic weeds.

The purpose of this work is to better manage and conserve limited water supplies, and in many
cases, to maintain flood carrying capacity. Generally, maintenance activities are performed during
limited windows of time when there is little or no flow in the canal, and direct water quality impacts
are therefore minimal or non-existent. In fact, many maintenance activities, such as bank
stabilization, protect and enhance water quality, the goal of the CWA. Most of these activities
currently do not require Section 404 permits.

However, as drafted CWARA could, and likely would, be interpreted to require Section 404 permits
for many routine maintenance activities. Nationwide, we are told there is a current backlog of at
least 15,000 CWA permit requests. Even the most straight-forward Section 404 permit can take
months or years to process now – time that system operators don’t always have. Further delays in
meeting the expanded permitting requirements of CWARA will result in the disruption of vital water
supply operations and deferral of maintenance activities necessary to assure supply reliability, flood
protection and water quality.

Congress has a unique opportunity to instill a common-sense approach to protecting our water
quality and related resources; one that steers clear of creating certain havoc in surface water
operations throughout the country by clarifying that man-made ditches are not jurisdictional.
Unfortunately, the proposed CWARA is ambiguous and will lead to uncertainty and litigation. We
urge you to consider the appropriate protections already afforded U.S. waters under the CWA,
particularly via existing state programs. Please reject the unprecedented federal expansion proposed
in this bill, and instead find ways to streamline current CWA administration.

Western family farmers and ranchers urge clarity, not expansion of the Clean Water Act.


Patrick O’Toole , President Family Farm Alliance
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