For Sportsmen, Clean Water Restoration Act Goes Too Far

Peyton Knight of the National Center for Public Policy Research is warning sportsmen that the proposed Clean Water Restoration Act sponsored by Representative James Oberstar (D-MN), “would do more to threaten the cherished pastimes of hunters, fishermen and other outdoor enthusiasts than it would to ensure the cleanliness of our nation’s water.”

I’ve written a couple times over the past few months about the CWRA (here and here) but Knight brings to the attention of American sportsmen what could await us should this act be approved.

The intent of the existing Clean Water Act was to ensure that our navigable waters remained pollution free. We have witnessed some abuses of this act through narrow interpretations by our court system. The Clean Water Restoration Act, according to Knight, goes far beyond navigable waters, leaving us to wonder just how far this regulation and court-interpreted Act would go.

In reality, the Clean Water Restoration Act (CWRA) does not “restore” the CWA. Instead, it greatly expands its scope and jurisdiction. The bill would bring federal oversight to activities that affect all “waters of the United States” as opposed to merely “navigable waters” as called for in the original CWA. “Waters of the United States” is broadly defined in the legislation to include “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.”

I spoke with Knight by phone last fall and we discussed the prospects that with enactment of CWRA and the typical efforts of environmentalists, particularly through lawsuits, hunters could be facing ridiculous restrictions on such things as constructing duck blinds, whether portable, temporary or permanent without first obtaining permits.

Knight gives prime examples in addressing foreseeable problems in the upper Midwest – some of this nation’s top waterfowl hunting grounds.

Both “prairie potholes” (depressed areas that temporarily hold rainwater and snowmelt) and “sloughs” (swampy depressions typically comprised of stagnant water or mud) are specifically named in the CWRA as “waters” that would be subject to regulation – a departure from the original Clean Water Act. As a consequence, driving posts into water and mud near a prairie pothole for construction of a duck blind could constitute discharging dredged or fill material into the “waters of the United States,” which is illegal under the CRA without a permit.11

In addition, hunters who fire shot over and near prairie potholes, lakes, rivers, ponds and wetlands could be considered polluters under the CWRA. In 1996, a U.S. District Court in New York ruled against a shooting range when it found that expended shot, even non-toxic steel shot, is considered a pollutant under the current CWA.12

But the passage of the CWRA wouldn’t just affect hunters. It could have unusual and ridiculous consequences for anglers, recreational boaters and all shooting sports. Knight says that with the wording of the CWRA, that includes virtually every place there is or has been water and leaving much of the interpretation of what would be considered a pollutant up to the courts, anything and everything that is put in the water, including the fisherman, could conceivably be prohibited.

This means trout and small-mouth bass fishermen could lose access to their favorite rivers and streams, as wading in these waters necessarily disturbs rocks and sediment, and therefore could be considered harmful to fish and other wildlife. Lead lures, sinkers or split-shot could be deemed pollutants.

Recreational boating could be restricted or banned in certain waters due to the incidental discharge of engine cooling water, bilge water, deck runoff or ballast water. In fact, environmental litigators have already struck a blow against recreational boating under the current CWA.

We already have seen the courts rule that spent lead and steel shot, as well as clay targets, from shooting ranges, for example, are deemed a pollutant. With expanded control by the government to all waters, which includes watersheds and wetlands, where will this leave shooting ranges, etc.?

EPA notes that lawsuits “have been the driving force behind most legal actions against outdoor ranges.”28 For example, in 1994, the Long Island Soundkeeper Fund, an environmental organization, successfully sued the New York Athletic Club under the CWA because the club had been operating a trap shooting range on its property. In this case, the court found that debris from clay targets and expended shot, including non-toxic steel shot, are pollutants under the CWA. According to EPA, “Based on the court’s decision… any range whose shot, bullets or target debris enter the ‘waters of the United States’ could be subject to permitting requirements as well as governmental or citizen suits.”29

More recently, Blue Eco Legal Council, an environmental organization, filed a lawsuit under the CWA against the United States Department of Justice, Coast Guard, Navy, Marines and Department of Defense, alleging that an FBI shooting range in North Chicago is endangering Lake Michigan with stray bullets.3

The majority of hunters, fishermen and outdoor enthusiasts want to keep our land and our waters clean. As a matter of fact, sportsmen have contributed over $10 billion dollars in funds used for conservation but to give the federal government, which in turn would turn interpretation over to the courts, broad and sweeping jurisdiction over “all the waters” in this country, would not only be costly but could very easily tie up the courts with ridiculous lawsuits and seriously strip hunters, fishermen, boaters, landowners and effectively every American, opportunities to enjoy the natural resources God has given us.

The Clean Water Restoration Act, at least as it is written, should not be allowed to pass. Please contact your congressmen and let them know.

Tom Remington