‘Navigable’ Makes Difference Between Good Policy, Federal Land Grab

By August 21, 2009Regulations

A very good op-ed in The Dallas Morning News by Nolan Ryan and Sen. Kay Bailey Hutchison (R-TX), explaining the legislation that would extend federal control over private property that might or might not have water on it, sometimes.

From “Stand against federal land grab“:

The Clean Water Restoration Act is a critical piece of legislation that hinges entirely on one word: “navigable.” In 1985, this sweeping law was enacted to keep our nation’s navigable waters – those used for commerce or transportation – free from pollution and safe for use. To date, waters falling under Environmental Protection Agency jurisdiction as prescribed by the original Clean Water Act have included permanent, standing or continuously flowing waters, such as oceans, rivers and lakes.

However, Congress is debating a bill that would strike that key word, “navigable,” from the law. Of the 2,308 words in the legislation, “navigable” is the most consequential one….[snip]

By striking the limitation to navigable waters, virtually all water would fall under government control. That means streams, creek beds and drainage ditches on the Ryan family ranch – and every other ranch or farm in the country – would be regulated by the government. This is an egregious infringement of private-property rights, and it interferes with the property management and business operations of our thriving agriculture industry.

The bill is S. 787, the Clean Water Restoration Act, which was reported out of the Senate Environment and Public Works Committee on June 18 on partyline vote (Democrats for, Republicans against). From the CRS summary:

Clean Water Restoration Act – Amends the Federal Water Pollution Control Act (commonly known as the Clean Water Act) to replace the term “navigable waters” that are subject to such Act with the term “waters of the United States,” defined to mean 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, to the fullest extent that these waters, or activities affecting them, are subject to the legislative power of Congress under the Constitution.

The National Association of Manufacturers is a member of the Waters Advocacy Coalition, which released a fact sheet on the legislation here.

UPDATE (11:15 a.m.): A good comment that bears noting: “Note that innocous phrase  ‘or activities affecting them’ at the end of the section. This means that federal control would also extend beyond these waterways themselves and would encompass activities on land that is not in the ‘waters of the United States’ definition.”

Join the discussion One Comment

  • John C says:

    There is more than the removal of “navigable”. Note that innocous phrase ” or activities affecting them” at the end of the section. This means that federal control would also extend beyond these waterways themselves and would encompass activities on land that is not in the “waters of the United States” definition.

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