NCPA - National Center for Policy Analysis


August 22, 2008

Under the Clean Water Act of 1972, the Environmental Protection Agency (EPA) and the Army Corps of Engineers are granted jurisdiction over the "navigable waters" of the United States.  Over the years, the definition of "navigable waters" overflowed its banks, expanding to include virtually anywhere with detectable levels of H2O, says Reason.

  • This law began as a reasonable attempt to control water pollution in the nation's rivers, lakes and streams, says Peyton Knight at the National Center for Public Policy Research.
  • However, it spiraled into unreasonable federal regulation of isolated wetlands, ponds, dry lake beds, and drainage ditches.
  • In 2006, the U.S. Supreme Court issued a muddled opinion in "Rapanos v. United States" that reined in some of the more exotic interpretations of "navigable waters."

Now, two Democratic congressman have introduced the Clean Water Restoration Act, which would replace the phrase "navigable waters," with "waters of the United States," by which they mean "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, sand flats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing."

If the bill passes, it will create massive new regulatory barriers for fishermen, boaters, hunters, and even some conservationists, who may find that their favorite hobbies no longer pass muster, says Reason.  The act leaves it up to the courts to decide if "waters of the United States," also include your kitchen sink and bathtub. 

Source: Ronald Bailey, "Feds in the Fishbowl," Reason, August/September 2008.

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