Wednesday, May 20, 2009

The Great Congressional Water Grab (yes, including mud puddles)

Michigan, through its Department of Environmental Quality (DEQ) is one of only two states that regulate wetlands with a state agency rather than through the federal government. This has been a problem because state guidelines are much more strict than federal guidelines. Additionally, the DEQ has proven to be arbitrary and capricious in its decision-making and has often caused long, unnecessary delays in approving permits.

While the concerns about over-regulation by a state agency are valid, they may be rendered "moot" by recent efforts in Congress. U.S. Senator Russ Feingold has introduced a bill with 23 sponsors including Senators Levin and Stabenow. Senate Bill S787 is entitled, "To amend the Federal Water Pollution Control Act to clarify the jurisdiction of the United States over waters of the United States." Notice they start the description with the words "pollution control." That makes it sound caring and good, doesn't it?

In fact, this legislation will put ALL surface waters in the United States under Congressional jurisdiction. The bill language has a couple of key phrases in it. The first changes the definition of what is under Congressional jurisdiction. Ever since the Commerce Clause of the Constitution and several test cases in the Supreme Court, Congress has had jurisdiction over navigable waters. The meaning of that word has been argued, but according to precedent and legal definition, navigable includes anything you can get a canoe down, or anything that is connected by water to the same.

No matter because under S787, the word navigable is stricken, which means now ALL surface water is under Congressional jurisdiction. Additionally, in case there was any question of state's rights, the bill states that this applies to interstate and intrastate waters. That means there is no state sovereignty over waters within that state's boundaries. Are you wondering how Congress describes "waters"? It includes, "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."

The bottom line is, Congress is taking over all the water. If the Obama administration and Congress are anything like this state's governor and her administration, you will see free trade and commerce come to a virtual stand still. Manufacturing especially will come to a screeching halt. Water is an essential resource in the manufacture of virtually any consumable or durable good. Without ready access, manufacturers will be stifled in their attempts to create new products for market and the jobs that go with them.

It is not too late to stop the Congressional Water Grab. Contact your U.S. Senators and ask them not to enact this legislation. Be respectful, but be firm. If you believe this will hamper future economic development, tell them!

Contact Levin                                                         Contact Stabenow

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