Henry Lamb
They're still after your water
By Henry Lamb
November 22, 2009

The 4th Amendment is quite clear: an American citizen's right to be secure in his property against search and seizure without a warrant shall not be violated. The 5th Amendment underscores this right: "...nor shall private property be taken without just compensation."

This is the clear, unmistakable language of the highest law of the land: the U.S. Constitution.

Congress is about to pass another law that completely ignores the Constitution, the Clean Water Restoration Act (S-787).

For the first 100 years, the states set water policy. The feds got into the business in 1886 with the "River and Harbor Act, and expanded their interest in 1948 with the Federal Water Pollution Control Act. From the outset, the federal government was interested only in "navigable" waters that affected interstate and foreign commerce, consistent with federal powers authorized in Article 1, Section 8 of the Constitution.

The federal government dipped its hand deeper with the 1972 "Clean Water Act," in which the first goal was to "to attain a 'zero discharge of pollutants' into navigable waters by 1985." It is significant that the word "wetland" did not appear in law.

Almost immediately, green advocacy groups began filing lawsuits claiming that the Clean Water Act required the protection of wetlands, as well as "navigable" waters. Interestingly, many of the lawsuits were settled out of court, through a consent decree. This means that the green advocacy group and the federal agency got their heads together and wrote a definition of wetlands that far exceeded the congressional language and intent. When the judge approved the agreement, his "decree" became the law.

Between 1973 and 1977, the federal government's representative involved in writing the consent agreements with the green advocacy groups, was Russell E. Train, EPA administrator. Before assuming this position, Train headed the Conservation Foundation. When he left the EPA, he became president of the National Wildlife Foundation. For all practical purposes, these green advocacy groups wrote the definition and the rules of implementation that allowed the federal government to seize control over any land that it designated as a wetland.

Federal agencies had a field day prosecuting people for polluting the navigable waters of the United States. The Sierra Club created its Swamp Watch Committee of volunteers who rode the back roads to find bulldozers at work so the feds could descend on the worksite to inspect for wetlands. The definition of "navigable" waters expanded to the point that the Corps of Engineers adopted its "Migratory Bird Rule," also known as the "Glancing Goose Rule."

Under this rule, the federal government claimed jurisdiction over every mud puddle (and the adjacent land) in which a migrating bird might choose to land. This ridiculous rule is based on the reasoning that a migrating bird crosses state lines, and since a hunter might shoot at it with a rifle and ammunition that crossed state lines, the migrating bird is an object of interstate commerce which is within the power of Congress to regulate.

Fortunately, the Supreme Court threw out this monstrosity in the SWANCC decision. (Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 [2001].) In another Supreme Court decision, the court ruled in favor of John Rapanos, who 20 years ago put dirt on his private property in preparation for building a shopping center, and was stopped by the government. The Rapanos land was 20 miles from the nearest "navigable" water, yet the government determined that his shopping center was on a wetland and therefore subject to federal regulation under the Clean Water Act. The Supreme Court said the land was not subject to federal regulation.

These two court decisions sent the green advocacy groups into orbit and their Congressional puppets into action. Senator Russ Feingold introduced The Clean Water Restoration Act (S787) to restore wetland policy to what it was before the Supreme Court Rulings.

What Feingold intends to do is to legitimize the rules expanded by the consent decrees generated by green advocacy groups' lawsuits. The Supreme Court decisions returned the policy to the original intent of Congress for rules to apply only to "navigable" waters.

The Feingold bill solves the problem by simply removing the word "navigable" from all water law. This will give the federal government control over all water everywhere. By claiming jurisdiction over all water, everywhere, the government completely ignores the 5th Amendment. The law also claims jurisdiction over all "activity that may affect the water of the United States," completely ignoring the 4th Amendment.

Under this law, federal agents would not have to sign an affidavit alleging wrong doing in order to persuade a judge to issue a warrant. Federal agents could simply demand that a private citizen cease and desist any activity on his own private property that might affect water.

How can Congress authorize a federal agency to violate the 4th Amendment? How can Senator Feingold and the two-dozen co-sponsors swear an oath to "...preserve, protect, and defend," the Constitution and then write a law that completely ignores this absolute 4th Amendment right for every citizen to be secure in his property from all intruders, including the government, unless a warrant is issued.

The expanding power of the federal government must be reined in; the only power on earth that can do it are the people who choose the representatives who go to Congress.

http://www.altlaw.org/v1/cases/531119 wetland consent decree

© Henry Lamb


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
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