A Watery, Regulatory Grave for Ownership Rights

By December 10, 2009Regulations

In a column today, “Erosion of ownership rights,” Quin Hillyer of The Washington Times identifies six different fronts (at least) where property rights are under assault. His first example has drawn outrage and opposition in farm country, but it’s worth attention from manufacturers and other business owners, too:

First, consider the moves in Congress to extend federal regulatory jurisdiction from “navigable” waters to “all interstate and intrastate waters of the United States.” Suddenly, if the so-called Clean Water Restoration Act passes, your backyard fish pond could be subject to the dictates of commissars from the Environmental Protection Agency. (See editorial on facing page.)

Enactment of the CWRA would surely spur massive court fights. The CWRA’s regulatory overreach would, by all logic, run afoul of the Constitution’s “interstate commerce clause.” How an “intrastate” water of the sort affected by this bill would qualify as “interstate” commerce is beyond normal reasoning.

In a speech to the State Chamber of Oklahoma on Thursday, NAM President John Engler also mentioned the legislation. From his prepared remarks*:

Since I mention the Clean Water Act, there’s also a bill that has already passed a Senate Committee that would drop the “navigable” to
describe the bodies of water covered under the 1972 law. So the EPA would expand its regulatory authority to take over stock ponds, creeks, and perhaps even where water collects off the downspout from your warehouse.

Try to picture Oklahoma’s first settlers building the American dream under those conditions: 160 acres of land, a mule, and an EPA official hanging on the fence….and a fellow from the Corps of Engineers coming
up over the rise.

The bill is S. 787 sponsored by Sen. Russell Feingold (D-WI).

* We now find out that Engler did not use the mule imagery. Poor mules. Always left out in the field.

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