SENATE MEMORIAL 46

48th legislature - STATE OF NEW MEXICO - second session, 2008

INTRODUCED BY

Steve Komadina

A MEMORIAL

REQUESTING CONGRESS TO DEFEAT UNITED STATES H.R. 2421 AND UNITED STATES S. 1870, THE SO-CALLED CLEAN WATER RESTORATION ACT.

     WHEREAS, the federal Clean Water Act amendments contained in United States H.R. 2421, which is being co-sponsored by Congressman Tom Udall, proposes to give the federal government control over virtually all waters of the United States; and

     WHEREAS, the legislation, co-sponsored by Representative James Oberstar (D-Minnesota), would expand the federal government's control over western water resources to such an extent that, even periodically, wet ground would come under federal hegemony; and

     WHEREAS, this bill represents one of the most expansive power grabs over western states and the west's resources in memory, fundamentally eroding the ability of westerners, and state governments in particular, to manage their own water resources and cause an avalanche of new unfunded mandates to envelop state and local governments; and

     WHEREAS, it will make it more costly to grow crops, provide water to cities, operate and maintain water storage and delivery facilities, produce energy, including renewable power, build and maintain public transportation systems, deliver affordable goods and services to consumers and carry out virtually any activity that occurs on land without federal agencies constantly threatening to interfere; and

     WHEREAS, the legislation, formally known as the "Clean Water Restoration Act", is also sponsored in the United States senate as S. 1870 by Senator Russell Feingold (D-Wisconsin); and

     WHEREAS, the bills' sponsors contend that United States waters are threatened due to United States supreme court decisions in 2001 and 2006, which clarified the waters that fall under federal jurisdiction; and

     WHEREAS, by changing the federal Clean Water Act's jurisdictional sweep from regulation of "navigable waters" to "waters of the United States", the bill would have a devastating impact on western states' sovereignty and on virtually every citizen in the region; and

     WHEREAS, there is virtually no business or job-creating activity in the west that would not be adversely affected by this bill; and

     WHEREAS, the bill would:

          A. expand the regulatory reach of the federal environmental protection agency and the army corps of engineers to include essentially all arguably wet areas, or areas that are wet at some time, in the United States, giving the federal government jurisdiction over ground water, ditches, pipes, streets, gutters and desert features;  

          B. expand the legal basis for the federal Clean Water Act, moving it beyond the current jurisdiction under the "commerce clause" in the United States constitution, which limits congressional authority over water to regulating commerce and to making congressional authority over any United States waters virtually unlimited;

          C. essentially grant the federal environmental protection agency and the army corps of engineers a veto over local land-use policies and any activity involving water, including commercial and residential real estate development, agriculture, electric transmission, transportation, mining and energy development and even recreational activities;

          D. eliminate existing regulatory limitations that allow common-sense uses, such as prior converted crop land and waste treatment systems;

          E. implement an expanded definition of waters that would burden state and local governments both administratively and financially, placing unfunded mandates on those political subdivisions and the states;

          F. affect land-use plans, floodplain regulations, building and other codes and watershed and storm water plans and likely delay development of new projects and maintenance of existing infrastructure; and  

          G. cause water providers, landowners and water-use entities liability risk; and

     WHEREAS, under this legislation, liability for citizen lawsuits and exposure to attorney-fee awards would increase for all landowners who have water features on or near their properties; and

     WHEREAS, similar concerns and risks would be faced by all water delivery and water-use entities;

     NOW, THEREFORE, BE IT RESOLVED BY THE SENATE OF THE STATE OF NEW MEXICO that Congressman Tom Udall be requested to withdraw his support for, and that the United States congress be requested to defeat, H.R. 2421 and S. 1870, the so-called Clean Water Restoration Act; and

     BE IT FURTHER RESOLVED that copies of this memorial be transmitted to the New Mexico congressional delegation, to the speaker of the United States house of representatives and to the majority and minority leaders of the United States senate.

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