New “Clean Water” Legislation Redefines The Term “Navigable”

Posted on Freedom Advocates on May 2nd 2007 

By [post_author] –

The Clean Water Authority Restoration Act (CWARA) moves the Clean Water Act (CWA) beyond protecting wetlands and waterways, and creates legislation that would regulate nearly every wet area in the nation. This could include ditches, farm ponds and possibly groundwater. “Navigable” is the one little word deleted from the Clean Water Act.


Rep. James Oberstar (D-Minn.), Chairman of the House Transportation and Infrastructure Committee, is circulating a ‘Dear Colleague’ letter encouraging Members to cosponsor the Clean Water Authority Restoration Act (CWARA), which would delete the word “navigable” from the Clean Water Act (CWA).


Under this proposal, the regulatory reach of the CWA would undergo its greatest expansion since the law took effect in 1972. The CWARA would grant the Environmental Protection Agency and the Army Corps of Engineers federal regulatory authority over all “intrastate waters.” This proposal would move the CWA beyond protecting wetlands and waterways, and create legislation that would regulate nearly every wet area in the nation. This could include ditches, farm ponds and possibly groundwater.

This very current proposal has a history that most people should understand before they jump to support it or yawn and wonder if it has anything to do with them.

The term “Navigable Waters” first appears in the records of the US Senate on 18 June, 1862 regarding the dredging of rivers to defend the Great Lakes during the Civil War. The term then goes on over the years to repeatedly, in Appropriations Bills and New Laws, appear to authorize Federal dredging and “improvements” to “Navigable” waterways to aid and abet “Interstate Commerce”.

The Constitution (Article I Section 8) gave Congress the “Power”, “To regulate Commerce with foreign Nations, and among the several States”. From this original charge for Congress to “regulate” things like harbors and rivers for purposes of “commerce” evolved the simple practice of Federal regulation of interstate commerce by, among other things maintaining safe and deep channels in “Navigable Waterways” for commerce. Also, one of the stated purposes in the Preamble of the Constitution is for the Federal government to “provide for the common defense”. Additionally, in Article II Section 2 of the Constitution it states that “The President shall be Commander-in-Chief of the Army and Navy of the United States”. From these mandates came the established practice of the US Army Corps of Engineers dredging “Navigable” rivers and bays and coastal channels for the purpose of sheltering and moving a Navy and providing defensive capability for the nation.

For many decades States were happy to have the Federal government maintaining water control structures like locks and dams, water levels, navigation aides, and channels themselves up the Mississippi to Minnesota and up the Missouri to North Dakota. Business and agriculture were likewise supportive of this important and beneficial function of government. From the Hudson to the Sacramento River, Federal projects and maintenance of “Navigable Waters” were integral and welcome factors until somewhere around the 1960’s.

Environmental claims arose in the 1960’s that challenged everything from logging and ranching to hunting and fishing. Federal authority creation became a popular and effective tool to enforce the “new values”. Federal authority over “Endangered Species” and “Marine Mammals” and “Animal Welfare” was created out of thin air and under questionable circumstances for murky purposes. Also, lawsuits in certain more “radical” courts began to get decisions that “Navigable Waters” (those under Federal jurisdiction and regulations for most purposes) weren’t “only” the waters that were “navigable” or used for “commerce” or necessary for “defense”: indeed, “Navigable waters” included streams and creeks and marshes and ponds and intermittent wetspots and everything in between. Radical environmentalists and Federal bureaucrats hailed this new concept (as more new legislation like the “Clean Air Act” and the “Clean Water Act” were being drawn up and a new federal agency, the Environmental Protection Act, was being birthed. For instance an Hungarian immigrant in Pennsylvania was jailed for dumping tires in a wetspot behind his business while the entire “Conservation Community” and State fish and wildlife agencies hailed the new Federal authority over everything “wet” as the “only hope” for America’s water and wildlife.

Only thing is that, unlike Roe v. Wade, this Court finding that “Navigable Waters” meant everything damp was itself all wet and under constant challenges. Hence this latest move by the long-serving and esteemed Congressman from Northern Minnesota to just drop the word “Navigable” from the Clean Water Act thereby just making this Act “cover” all water as being under Federal authority.

This convenient “switch in the night” is virtually unopposed. Why? Could it be because the state fish and wildlife agencies and State Natural Resource Departments that “regulate” state waters are in the pockets of Federal bureaucracies? Is it because state politicians see this as “good” for getting “more” Federal grants” or having “federal regulators” take the heat for planned water takeovers and shifts? Is it because environmentalists see this as a way for Federal controls over shorelines, and development, and water use, and “riparian areas”, and water-associated wildlife and fish, and human activities to be strengthened at the expense of state authorities, local authorities, and private property owners? Could it be that waterways are ideal units to piggyback future “corridors” and “Wildlands” schemes on for Federal land acquisitions and easement programs? Could it be that a state like Minnesota (remember the ancient Congressman who wrote the letter above is from there) thinks that with “all” their lakes they will get “lots” of whatever Federal largesse is made available (too bad about all those lakefront owners and farmers though)?

Think of what this will do in the Northwest where environmentalists and animal rights groups want to destroy dams and stop salmon fishing and irrigation and gain more “control of headwaters”. Think of what this will do on the Platte Rivers in the face-offs between landowners and agriculture versus the state and Federal politicians and bureaucrats in the hire of the radicals. Think about the few privately owned marshes left in the Dakotas or the wet woods in Michigan or Arkansas. Think of what this does for goofy claims like Ivory-billed Woodpeckers in the woods or the “need” for black bear or panther habitat in Florida. Think of what this means for riparian areas in Arizona or coastal streams in New England or environmental desires for Maine timberlands.

All of these areas of contention between the forces of freedom and oppression will noticeably tilt in favor of a more powerful and unresponsive central government controlled by radicals. Yes, all because of “one little word”. With the removal of that word it becomes feasible to claim Federal jurisdiction to adopt “Native ecosystem” standards and “Invasive Species” requirements over much broader “Federal Waters”. With the removal of that one little word private property rights are further jeopardized, local governments become more irrelevant, state governments become more acquiescent (to Federal direction), and like Zimbabwean government claims of owning everything our Federal government takes one more step toward despotism. While Mugabe claims to do it for one race of citizen; we abandon the tried and true concept of Federal defense of the nation and fostering interstate commerce for the smoke and mirrors of the radical environmental socialism of the New Millenium.

Thus does the Federal government grow. Just as laws that ignore Constitutional guarantees and roles and private property grow Federal power; so too can a simple erasure of a word in established law serve as a venue for growing Federal power. Both methods are much like manure and liquid nitrogen causing growth and then destroying everything as it is overdone.

Jim Beers – If you found this worthwhile, please share it with others. Thanks.

– This article and other recent articles by Jim Beers can be found at Jim Beers blog (Jim Beers Common Sense)

– Jim Beers is available for consulting or to speak. Contact:

– Jim Beers is a retired US Fish & Wildlife Service Wildlife Biologist, Special Agent, Refuge Manager, Wetlands Biologist, and Congressional Fellow. He was stationed in North Dakota, Minnesota, Nebraska, New York City, and Washington DC. He also served as a US Navy Line Officer in the western Pacific and on Adak, Alaska in the Aleutian Islands. He has worked for the Utah Fish & Game, Minneapolis Police Department, and as a Security Supervisor in Washington, DC. He testified three times before Congress; twice regarding the theft by the US Fish & Wildlife Service of $45 to 60 Million from State fish and wildlife funds and once in opposition to expanding Federal Invasive Species authority. He resides in Centreville, Virginia with his wife of many decades.


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