Skip to comments.Water wars await Alito in debut on high court
Posted on 02/20/2006 9:00:06 AM PST by SmithL
The cases, both from Michigan and scheduled for hearing on Tuesday, could have an enormous impact. For property-rights advocates, an unfavorable ruling could spread the shadow of federal regulation over every tiny stream and rivulet in America, stifling development.
Federal authority would extend to "virtually every body of water in the nation -- every brook and pond, every dry wash -- that has any connection with navigable waters, no matter how remote," warned a coalition of water suppliers, farmers and the states of Alaska and Utah in one of more than 50 briefs filed with the court.
For environmentalists, a loss would strike at the heart of the nation's water resources.
Federal agencies would be powerless to prevent "the discharge of sewage, toxic pollutants and fill into ... the large majority of our nation's rivers, streams and other waters," said clean-water agencies from two-thirds of the states, including California.
The two lawsuits challenge the federal government's power to prevent landowners from filling and developing wetlands -- marshes, ponds, drainage ditches or small streams -- that have some connection with a distant river or lake.
Lower courts ruled in both cases that the Clean Water Act of 1972, which allows federal agencies to prevent pollution of navigable waters, regulates the filling of small wetlands that impact larger waterways, even those many miles away.
Property-rights groups argue that "navigable waters" must be interpreted to mean only rivers, streams and lakes that can be navigated by boat, or adjacent wetlands that significantly affect navigation...
(Excerpt) Read more at sfgate.com ...
For environmentalists, a loss would strike at the heart of their attempts to gain Marxist control of the nation's water resources.
There, I fixed that sentence for them.
My husband is going to Washington to hear the arguments tomorrow. He used to be an EPA lawyer and one of his friends at EPA helped draft the U.S.' brief. Both of them think the government is going to lose the Michigan case.
This is one of those issues where, in my opinion, the past court took a distinct track away from the limits of the enumerated powers of the Constitution.
It all started out with the English concept of Royal rivers - those areas influenced by the tide and usefull for navigation and ports. The King reserved control over these areas. In England, these were all close to the coasts. When the idea of royal rivers was imported into America, rivers ran far inland to the Great Lakes. Originally there was a minimum ship size measured by draft. The court interpreted federal jurisdiction as applying over interstate navigable rivers that had to have two points in separate states that could be navigated for commercial purposes - e.g. interstate navigable rivers. The federal government NEVER had jurisdiction over intrastate rivers.
The court expanded navigation to include small boats on streams. It then took jurisdiction over hydropower dams that blocked navigation on interstate streams. Then it took charge of water quality AS AFFECTED NAVIGATION on interstate rivers - particularly dredge and fill. Of course, this eventually became expanded to include water quality elements having no perceivable impact on navigation, such as low dissolved oxygen, water temperature, etc.
Traditionally, all streams not commercially navigable between states were under state jurisdiction. Then the jurisdiction over federal interstate navigable streams was expanded to include navigable and non-navigable streams that empty into interstate navigable streams as "waters of the United States." As wetlands can be hydrologically connected to streams, this was expanded to include wetlands.
Following that track, groundwater is hydrologically connected to streams, leading to the Safe Drinking Water Act, etc.
It is like an octopus with tentacles reaching out to embrace everything it can. It all comes back to this - what relationship does the quality of my well water or the fill of a wetland on my property have to do with interstate navigation? Proximate cause dictates that there be some direct cause and effect relationship proveable between my use and substantial negative impact on navigation. I don't see it and the "cummulative effects" arguement obscures the standard of proof required under proximate cause.
Only 7 or 8 posts on these two threads...Maybe they are read, but not understood...
Looking at the Constitution its hard to see where Congress can claim the authority to regulate fresh water within the states. They can on federal property, but any other property only a state can regulate.
Only other way I can see them justifying regulation is if some state activity is causing direct harm to federally owned wetlands and streams they could enforce prohibitation of activities that damage these water courses to preserve them from harm.
Shocked! you mean they want the court to interpret the word Navigable to mean Navigable? Say it aint so!!!
"It is like an octopus with tentacles reaching out to embrace everything it can."
That's a pretty good description of our beloved Federal government itself.
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