Property rights and the Clean Water Act

The United States of America were founded on the premise of natural rights, succinctly dictated as the unalienable rights of "Life, Liberty, and the Pursuit of Happiness."

During the era in which the Declaration of Independence was framed the Pursuit of Happiness applied to property rights. Our founding fathers knew that Man has the right to attain property, keep it, and engage in its use to make his life better in manners that he saw fit as long as the rights of others were not infringed.

Despite the obviousness of these rights, the framers of our nation found it necessary to clearly define them in the Declaration and once again in the Fifth Amendment because history had showed to them that the inalienability of property rights had been cast aside by numerous despots and societies which in turn led to one of two things: oppression of their people or the ruination of those societies.

Over time, our government has purposely strayed from these basal tenets. Property has become something that our federal government has gained illegally and expanded its power over, controlling its use at whim.

Matters look to only get worse with subjugation of water rights by the federal government through amendment of the scope of the Clean Water Act of 1972.

In its current form the Act gives jurisdiction over navigable waters to the federal government. This is not a perfect law, but it does have some merit because regulation of navigable waters are necessary for the maintenance of interstate trade (one of the defined powers of the federal government), and those upstream can very easily affect the life, liberty, and happiness of others downstream if they weren’t regulated in their industrial and waste outputs or kept from damming the waterway.

The modified version, the draft of which was introduced by the Environmental Protection Agency (EPA) less than a month ago, would expand their regulatory powers beyond navigable waters and would throw into the mix any waterway that contributes to the watershed of the navigable water. Therefore, federal jurisdiction would be extended to all bodies of water – permanent or intermittent – everywhere in the United States, be they in your backyard or on your farm. The federal definition will be extended to include, among other things, streams, wetlands, sloughs, wet meadows, ponds and ditches.

This would allow the federal government to regulate how you manage any body of water on your own private property. They will be allowed to control what you do and how you do it and will be empowered to force you to mitigate anything they might perceive as detrimental.

This will have an undeniably negative impact on millions of property owners. Those who will have to answer for land and water they own will be: people who manage their ponds for fishing and leisure; miners who need water to pump their mines and wells; ranchers who need watering holes for their cattle; farmers who need to irrigate their fields and any homeowner with a stream in his lawn or woodlot.

Not only would the revised Act be an affront to personal property rights, but it is also devised in strict defiance of the rights of the people as a whole. Our nation was built on a republic style of government. Governance was supposed to work from the bottom up, from local to state to national, not the other way around as we’ve become so accustomed (forced) to. The EPA’s rule would only extend this ill-advised practice as it would supersede local and state laws and control – those entities are the ones that should have the regulatory power, if any at all.  

Also, almost every year this century members of Congress have tried to change the language of the Clean Water Act in similar ways. Since they failed, they are taking the inappropriate - even illegal - route of using executive power to fashion new laws.

The nearly-400-page draft of the EPA’s proposed expansion of power can be downloaded at epa.gov/uswaters, a website that also includes a trove of documents supporting their views.

The public comment period is not yet open, but will be within the next 2 months. When that time comes, it is imperative that you participate in the process, because it’s your last chance. Know that the modified language of the Clean Water Act is a disaster waiting to happen, one that’s in lockstep with the continued erosion of what it really means to be an American.