- The Washington Times - Monday, December 7, 2009

ANALYSIS/OPINION:

As The Washington Times reported (“Democrats navigate 1-word solution to expand water act,” Page 1, Friday), the Democrats’ proposal to eliminate the word “navigable” from the Clean Water Act is more than just a little word-smithing. That word also appears in the Federal Power Act. Upon that word the whole concept of federal water jurisdiction rests.

The states have dominion over their own resources except those that are shared by neighboring states and that can be said to affect interstate commerce. The Commerce Clause is referred to in federal regulation as the hinge pin of federal jurisdiction. Navigable waters are waters that at some time have allowed the transport of goods across state lines.

The Federal Energy Regulatory Commission has claimed federal jurisdiction over some streams on the basis that Native Americans transported animal pelts by canoe on those streams and claimed jurisdiction on streams on which logs were floated to saw mills for processing into lumber. The U.S. Army Corps of Engineers and the U.S. Bureau of Reclamation can construct federal water-control projects only on navigable waters of the United States, which keeps them from building federal projects that are within any state and affect only that state.

If the word “navigable” is eliminated from the Clean Water Act, the federal government will take environmental control of all waters of all the states. There will be no need for states to have their own departments of environmental protection because their jurisdiction will be usurped by the federal government.

The Environmental Protection Agency, under the Clean Water Act, has effectively blocked the construction of any new dams or impoundment structures on any navigable waters of the United States. The EPA claims that any increase of temperature in a stream or river constitutes thermal pollution and thereby effectively blocks the construction of any new impoundments on any federal jurisdictional waters. It is impossible to develop any new lake or reservoir without increasing the temperature of the water passing through it.

If “navigable” is removed from the Clean Water Act, the federal government will be able to block the construction of any new dams or lakes anywhere in any state of the country. The states no longer will have developmental control of any of their own waterways. There will be no new ponds or lakes built so that lake recreation and lakeside property can be developed. There will be no new reservoirs built that some industrial developments require.

The elimination of the single - and seemingly innocuous - word “navigable” will allow an undue federal usurpation of states’ rights. American governors had better take heed before they lose control of their own states.

JACK DUCKWORTH

Burke, Va.

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