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H.C.R. 6

             1     

CONCURRENT RESOLUTION EXPRESSING OPPOSITION

             2     
TO CONGRESSIONAL EFFORTS TO EXPAND THE

             3     
JURISDICTION OF THE CLEAN WATER ACT

             4     
2009 GENERAL SESSION

             5     
STATE OF UTAH

             6     
Chief Sponsor: Melvin R. Brown

             7     
Senate Sponsor: Ralph Okerlund

             8     
             9      LONG TITLE
             10      General Description:
             11          This concurrent resolution of the Legislature and Governor expresses strong opposition
             12      to any federal legislation that would expand the reach and scope of the Clean Water
             13      Act.
             14      Highlighted Provisions:
             15          This resolution:
             16          .    expresses strong opposition to any federal legislation that would expand the reach
             17      and scope of the Clean Water Act and a strong commitment to the goals and
             18      objectives of the original Act;
             19          .    asserts that, given the scope of what could be construed as "waters of the United
             20      States," it is not in the nation's interest to subject these waters to all of the
             21      requirements of federal regulation; and
             22          .    urges Congress to preserve the traditional power of states over land and water use
             23      and avoid unnecessary alterations to the regulatory reach of the proposed Clean
             24      Water Act amendments.
             25      Special Clauses:
             26          None
             27     


             28      Be it resolved by the Legislature of the state of Utah, the Governor concurring therein:
             29          WHEREAS, over the past 35 years, the federal Clean Water Act, supported by other
             30      federal, state, and local laws, has governed the nation's waters and has helped ensure that
             31      Americans enjoy the cleanest rivers and lakes in the world;
             32          WHEREAS, this landmark statute, further explained and clarified by subsequent
             33      Supreme Court cases, has struck a proper balance between clean water and state, local, and
             34      federal regulatory authority and responsibilities, while at the same time recognizing and
             35      protecting state primacy over water jurisdiction;
             36          WHEREAS, the proposed Clean Water Restoration Act of 2007, H.R. 2421 and S.
             37      1870, and similar legislation, attempts to make extreme changes to the Clean Water Act and
             38      threatens to destroy the careful inter-governmental balance that has been the hallmark of the
             39      law throughout its long history;
             40          WHEREAS, the proposed federal legislation would change federal jurisdiction over
             41      water by expanding the definition from "navigable" to "waters of the United States" over which
             42      federal jurisdiction extends;
             43          WHEREAS, that language change would allow federal reach to explicitly include "all
             44      interstate and intrastate waters and their tributaries . . . ", essentially establishing under
             45      federal law that all wet areas within a state, or areas that have been wet at some time, would
             46      fall under federal regulatory authority, including groundwater, ditches, pipes, streets, gutters,
             47      desert features, and even pools and puddles;
             48          WHEREAS, this legislation would give the United States Environmental Protection
             49      Agency (EPA) and the United States Army Corps of Engineers (Corps) authority over "all
             50      interstate and intrastate waters," including non-navigable waters, thereby granting to Congress
             51      authority far beyond the original scope of the Clean Water Act;
             52          WHEREAS, this legislation patently exceeds Congress's constitutional powers, as
             53      "non-navigable" waters are unlikely to fall under the Commerce Clause, the
             54      principle-enumerated power upon which Congress has relied for passage of environmental
             55      laws;
             56          WHEREAS, this legislation would dramatically expand the reach of the federal
             57      bureaucracy, would fundamentally erode the ability of state and local governments to manage
             58      their own water resources, and would cause an avalanche of new unfunded mandates to


             59      envelope state and local governments;
             60          WHEREAS, this legislation would essentially grant the EPA and the Corps veto
             61      authority over local land use policies, and would grant the EPA and the Corps authority to
             62      regulate virtually all activities, private or public, that may affect "waters of the United States,"
             63      regardless of whether the activity is occurring in, or may impact, water at all;
             64          WHEREAS, this legislation would eliminate existing regulatory limitations that allow
             65      common sense uses, including prior converted cropland and waste treatment systems, since the
             66      proposed definition does not include any regulatory limitations;
             67          WHEREAS, this omission is particularly important because the existing rules
             68      acknowledge two important limitations covering prior converted cropland and waste treatment
             69      systems designed to meet Clean Water Act requirements;
             70          WHEREAS, this legislation's expanded definition would burden state and local
             71      governments administratively and financially and would thrust unfunded mandates on state and
             72      local governments by imposing significant new administrative responsibilities upon them;
             73          WHEREAS, this legislation would require changes at the state level by impacting
             74      comprehensive land use plans, floodplain regulations, building and special codes, and
             75      watershed and storm water plans;
             76          WHEREAS, local governments will also be impacted because they are responsible for a
             77      number of public infrastructure projects, including water supply, solid waste disposal, road and
             78      drainage channel maintenance, storm water detention, mosquito control and construction
             79      projects; and
             80          WHEREAS, local government efforts to carry out maintenance of government-owned
             81      buildings, including hospitals, schools, and municipal offices, could also be adversely
             82      impacted:
             83          NOW, THEREFORE, BE IT RESOLVED that the Legislature of the state of Utah, the
             84      Governor concurring therein, express its strong opposition to any federal legislation that would
             85      expand the reach and scope of the Clean Water Act, and express their commitment to the goals
             86      and objectives of the original Act to keep our waters clean.
             87          BE IT FURTHER RESOLVED that the Legislature and the Governor assert that it is
             88      not in the nation's interest to regulate ditches, culverts and pipes, desert washes, dry arroyos,
             89      farmland, and treatment ponds as "waters of the United States" and therefore subjecting these


             90      waters to all of the requirements of federal regulation.
             91          BE IT FURTHER RESOLVED that the Legislature and the Governor call upon
             92      Congress to preserve the traditional power of states over land and water use and avoid
             93      unnecessary alterations to the regulatory reach of the Clean Water Act amendments as
             94      proposed in the Clean Water Restoration Act of 2007 and similar federal legislation.
             95          BE IT FURTHER RESOLVED that the Legislature and the Governor express their
             96      opposition to enacting the Clean Water Restoration Act of 2007 as proposed, as being without
             97      merit or justification based on 35 years of experience under the original Act as modified by
             98      court decisions and practice.
             99          BE IT FURTHER RESOLVED that a copy of this resolution be sent to the Majority
             100      Leader of the United States Senate, the Speaker of the United States House of Representatives,
             101      and to the members of Utah's congressional delegation.




Legislative Review Note
    as of 1-23-09 1:11 PM


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