Slippery Slope 2: A Water Slide With Govt’s Bid to Control America’s Waters

Not long ago I wrote a piece on how the law often becomes a slippery slope when in the hands of judicial activists and radicals that look to the law in order to warp it to their agenda. Today I have a different example of that warping of law except this is one from the legislative side in Congress. This time Congress is attempting to take under its control all water in the United States, even that which sits on or under privately owned lands.

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Senator Russ Feingold (D, Wis.) has introduced S. 787, legislation that is meant to help alleviate the confusion that has occurred for litigants since the 1972 passage of the Clean Water Act. Since ‘72 a series of confounding decisions have put agencies and users in a quandary as to the implications of the act and its authority. Unfortunately, Feingold's revision of the bill makes matters worse. Oh, sure it solves the question of authority, alright. But it solves it by seeming to claim that the federal government controls all of America's waters. From the puddle in your back yard, to the aquifer under your property, to the stream on your land, to every last rivulet, farm pond (even man-made ones), and navigable waterway, it's all Uncle Sam's if the over broad language in this bill is to be believed. Of course, to start with we have to know what "water" means according to the law. At the tail of the bill, a new definition of waters is given.

‘(25) WATERS OF THE UNITED STATES- The term ‘waters 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.’.

Further, Section five of the bill attempts to strike the term "navigable waters" (which has been defined as any waterway than can sustain at least small boat traffic, like a canoe) with the broader term "waters of the United States" which no longer carries any navigable requirements as seen in the new definition above. This means all water on its face and this is a major change of past practice. In the past, the federal government only laid claim to having power over "navigable waters" in order to facilitate commerce and transportation between states. So, by striking the word "navigable" and substituting "waters," this means that the federal government will control every single drop of water in the United States. Apparently, there will no longer be any such thing as private water rights. This also means that the states will basically lose all rights and control, as well. This revision seems to be a massive takeover of our nation's water resources by the federal government and a wholesale redefinition of rights. Of course, this far ranging bill is facing opposition. Colorado's Senators, for instance, oppose the bill. So do several conservation and other groups. But, for the most part, this revision is flying under the radar. The bill has 23 co-sponsors, all Democrats and some of the most liberal ones to boot. Boxer of California, Durbin of Illinois, Dodd and Lieberman of Connecticut, socialist Bernie Sanders of Vermont, and John Kerry of Massachusetts, among others, are co-sponsors of Feingold's bill. Whether they meant to or not, this bill could seriously re-design some key American property rights and it must be opposed. It is another example of the slippery slope toward a further degradation of our collective rights and of a statist government taking onto itself more and more power. Currently this bill sits in the Committee on Environment and Public Works, chaired by Barbara Boxer (D, Calif.). Let's hope it dies there. But since she is a co-sponsor, chances are she'll try to push it forward at some point.

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