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Water, water everywhere

In the past, the U.S. Supreme Court has tended to “split the baby” in deciding how far the Environmental Protection Agency and the Corps of Engineers can go in enforcing the Clean Water Act.

Trying to hew at least reasonably close to the Constitution, the 1972 law stipulates the federal agencies can restrict states or private landowners from dredging, draining, channeling or doing anything else that might inconvenience any weed, bug and minnow in and around only those waters which comprise “navigable waterways.”

Predictably, government regulators have attempted to stretch the definition of that authority — which can be found only by implication in the Constitution — to include inland wetlands and streams up which you could barely drag an empty canoe, on the theory that these waters “feed” some navigable waterway far downstream.

But two recent Supreme Court decisions, in 2001 and 2006, partially reined in these excesses.

Those who want to see the federal government regulate every inch of land in the nation were not pleased, and in reply they now offer up the Clean Water Restoration Act, which simply removes the word “navigable” from the law.

“So for ranchers and farmers who have mud puddles, prairie potholes — anything from snow melting on their land — all of that water will now come under the regulation of the Army Corps of Engineers and the Environmental Protection Agency,” points out Sen. John Barrasso, R-Wyo., chairman of the Senate Western Caucus. “The government wants control of all water — that also means that they want control over all of our land.”

Such an expansion of federal authority could put farmers in “regulatory quicksand,” protests Charlie Kruse, president of the Missouri Farm Bureau. But Jan Goldman-Carter of the National Wildlife Foundation, predictably, says the concerns of ranchers and farmers are unfounded.

“That amended language is very clear that it preserves long standing exemptions for ongoing agricultural practices, forest roads. There are a number of very generous exemptions in there particularly for ranchers and farmers that I know have been worried about the effect of this legislation, but in fact those worries are largely unfounded,” she said.

So in leaving private land owners a few “grandfathered-in” rights — while effectively barring any new land use or development — these voracious feeders on our remaining property rights are being “generous”!

Ms. Goldman-Carter added that the United States has long regulated streams and other waterways that aren’t “navigable,” anyway.

Ah. So a law intended to vastly expand federal authority isn’t anything to worry about, since the regulators have been vastly exceeding their authority for decades, already — until the court found enough teeth to start drawing the line?

Aside from striking “navigable,” it turns out the bill defines U.S. water 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.”

It adds that any “activities affecting these waters are subject to the legislative power of Congress under the Constitution.” Sounds a bit like a constitutional amendment.

In fact, it’s the Constitution that delegates — and limits — congressional powers, not the congressmen who would vote on this bill. If they want their regulatory reach expanded, let them seek the approval of the states, and of the people, for such an amendment.

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