Congress is trying to amend the Constitution
The feds are trying to steal your water
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The U.S. Constitution empowers the federal government to “regulate commerce … among the several states. …” Historically, this has been interpreted to empower the feds to regulate “navigable” waters of the United States.
Historically, “navigable” waters were defined to be water deep enough to float a canoe. Historically, the regulation of all other waters has been left to state and local governments, and before that, to whoever had the fastest gun.
No more. Nearly 40 percent (173) of the House of Representatives and 20 percent (20) of the Senate have co-sponsored legislation that will change existing law:
by striking “navigable waters of the United States” each place it appears and inserting “waters of the United States”; (H.R.2421, Sec. 5(1)).
The proposed law will define “waters of the United States” to be:
“[W]aters of the United States” means 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 these waters, are subject to the legislative power of Congress under the Constitution.
Read this definition carefully. Congress is trying to amend the Constitution without following the method specified in the Constitution. This proposed law will give Congress the power to regulate water that has nothing to do with the commerce clause. Perhaps more important, it will give Congress the power to regulate “activities affecting these waters.”
Where does the Constitution empower Congress to steal your city’s reservoir? Where does Congress get the power to steal the stream, or mud-puddle, or wet meadow, or to grant or deny any activities in which you may wish to engage on your private property? This is another example of “government sprawl.”
Congress does not have this power under the Constitution. Yet, should these proposed bills become law, they will assume the power, and exercise it. The usurpation of “powers not delegated by the Constitution,” which are “reserved to the States respectively, or to the people,” creates “government sprawl.” This affliction is far worse than “urban sprawl,” but there is little organized resistance against it.
Water is like sunlight; it cannot be created or duplicated, but it is essential to all life. When the availability or quality of either is threatened, it is the responsibility of government to regulate its use. The question is, from what power should this regulation arise?
All limitations of freedom should arise from the government that is closest to the people and should be authorized by the consent of the people whose freedom is limited. In the case of water regulations, these regulations should arise from the government that is closest to the water source and water users, and these regulations should be approved by the people whose freedom is limited by them.
The proposed legislation (H.R.2421 and S.1870) ignores this fundamental principle of freedom, and it ignores the U.S. Constitution. The proposed legislation would empower agencies of the federal government to impose another “one-size-fits-all” regulation that cannot possibly meet the needs of the people whose freedom will be limited by it.
The regulation of non-navigable waters should remain in the hands of state and local governments, where the people whose freedom is threatened can express their concerns and approve, or reject, specific regulatory proposals.
There is no justification for the federal government to “sprawl” its powers over virtually all water and everything that may get wet across the entire nation. This law would trash the system of riparian rights in the East, as well as the system of prior appropriation in the West. Water use in the United States will be dictated by an agency of government, based upon whatever principles may be in vogue at the time.
When Bill Clinton moved into the White House, every resource agency of the federal government was populated with recruits from politically powerful environmental organizations. The agenda that drives these organizations is not the U.S. Constitution, nor the rights of the people. Their agenda is to force the people to behave in ways they think is best for society.
Water is far too important to be controlled by any agenda other than the needs of the people, as determined by the people, through their elected representatives, at the level of government that is closest to the people. This means non-navigable water should be regulated by local governments, consistent with the policies of the state.
The people, and their local and state representatives, should rise up in outrage against this congressional effort to steal their water.