Navigable waters. We have talked about this before — but the real problem still has not been resolved.
Give a bureaucrat an inch and he'll try to take a mile. Our case here is the provision of the Clean Water Act (CWA) which defines its applicability to “navigable waters of the United States.” Even though the Supreme Court has struck down the Corps of Engineers expansive rules requiring permits for so-called “wetlands” — anywhere. Many states and others are either ignoring the ruling or are seeking ways to get around it.
In all candor states and the federal government need clear legal language which sets limits on what needs to be regulated and what is beyond. For years the Corps of Engineers simply expanded its definition of “navigable waters” to any wetland and required “dredge and fill” permits for modification. They even tried to use the “Migratory Bird Act” as a device to require permits to modify wetlands on which birds might light. This was struck down by the Supreme Court. Following this the Corps simply threw up its hands.
The real problem lies within the CWA. We are sure it was not Congress's intent to define navigable waters as anything other than those on which commercial boats and barges can transit.
A recent editorial in the Wall Street Journal tells of the case of a developer who moved sand on his own land to fill in some drainage ditches dug into a corn field. They are located 10 miles from the nearest “navigable water” — a river. The owner was charged with violation of the CWA and found guilty. Sentencing guide would have required him to spend 63 months in jail while a drug dealer convicted the same date got 10 months. Fortunately, the federal judge on this case used good sense and refused to sentence the developer.
There have been several efforts to clarify the CWA to set a clear definition of what may be considered “navigable waters.” None, thus far, have made it through Congress. Environmentalists see the expanded definition as a way to exert control over “development” which they usually try to thwart.
Until we either get a clear ruling through the Supreme Court or Congress bites the bullet, we will continue to have confusing and bureaucratic efforts to move into the vacuum.
Agriculture is a prime target for this type of expansive regulation — look out Mr. Landowner — Mr. Farmer — Mr. Developer.