The Federal Government Wants Your Lawn

We wish the headline was more of an exaggeration than it is. As if the California water bill isn’t enough of an assault on private water rights, the U.S. government wants to take what’s left.

Many people in the community are already aware of S787, a bill that would put every small puddle of water under the jurisdiction of the United States. We Americans are spoon fed all through elementary school that this is our America, we own it. This bill proves that you don’t even own your lawn.

The bill is sponsored by Russ Feingold and is called the "clean water restoration act." It is proposed that this bill only re-includes waters that once were covered by the Federal Water Pollution Control Act, and Clean Water Act, but the provision suffered attacks from court cases in 2001 and 2006. Proponents of the bill insist it simply restores that act.

This is not the case, though the bill does restore those indicated waters:

(10) the ability to meet the national objective described in paragraph (3) has been undermined by the decisions of the United States Supreme Court in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159 (January 9, 2001) and Rapanos v. United States, 547 U.S. 715 (June 19, 2006), which have resulted in confusion, permitting delays, increased costs, litigation, and reduced protections for waters of the United States described in paragraph (8);

In short, citizens who fought the definitions in the first bill and won are being undermined by their congress. At least their names will live in history.

The United States is able to meddle in your surface water at all because of the "Commerce Clause" (Article 1, Section 8, Clause 3 of the Constitution) which only says:

[The Congress shall have power] To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

Federalist (those who believe in a strong federal governments and weak state government) bureaucrats long ago used the accompanying "Necessary and Proper" clause to embellish the meaning of the phrase to cover everything that might eventually lead to interstate commerce. This is the same clause that allows the Feds to make marijuana illegal. That rationale is stated like this in the bill:

(16) protection of intrastate waters is necessary to restore and maintain the chemical, physical, and biological integrity of all waters in the United States;

However, the law really should limit the Federalistas from controlling anything except "navigable waters" as those are the waters over which commerce should take place.

Indeed, that is what the U.S. Supreme court determined in Rapanos: that the term "navigable waters" and "waters of the United States" can’t be limitless. The term "includes only those relatively permanent, standing or continuously flowing bodies of water 'forming geographic features' that are described in ordinary parlance as 'streams[,] ... oceans, rivers, [and] lakes.'"

The sponsors of the bill are stretching the meaning of the Commerce Clause beyond what the Constitution allows, driving some to call the bill "unconstitutional." See HERE

The bill covers that, too:

(2) water is transported through interconnected hydrological cycles, and the pollution, impairment, or destruction of any part of an aquatic system may affect the chemical, physical, and biological integrity of other parts of the aquatic system;

That means, not only navigable waters, but waters that might even one day touch navigable waters. The bill claims not to regulate subsurface or "ground" water, but it does, through this rationale of "interconnected hydrological cycles."

If adopted in its current form, a dip in your lawn that gathers water when it rained would become a "water of the United States."

Most of the opposition to this bill is focused on one passage:

(8) this Act will treat, as `waters of the United States', those features that were treated as such pursuant to the regulations of the Environmental Protection Agency and the Corps of Engineers in existence before the dates of the decisions referred to in paragraph (10), including--

(A) all waters which are subject to the ebb and flow of the tide;

(B) all interstate waters, including interstate wetlands;

(C) all other waters, such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds;

(D) all impoundments of waters of the United States;

(E) tributaries of the aforementioned waters;

(F) the territorial seas; and

(G) wetlands adjacent to the aforementioned waters;

In addition:

(18) small and intermittent streams, including ephemeral and seasonal streams, which have been jeopardized by the decisions referred to in paragraph (10)--

(A) comprise the majority of all stream miles in the United States;

(B) serve critical biological and hydrological functions that affect entire watersheds;

(C) reduce the introduction of pollutants to large streams and rivers;

(D) provide and purify drinking water supplies;

(E) are especially important to the life cycles of aquatic organisms; and

(F) aid in flood prevention, including reducing the flow of higher-order streams;


Most of those waters are already mired deeply in various Federal requirements, not to mention state water quality and fish and game requirements. Even watershed improvement projects have to be careful of violating these laws. This bill would close the loop; you might actually be jailed for misusing the United States Government water on your lawn. If that seems extreme, recall that Rapanos (Rapanos v. United States) was a farmer moving dirt around in his own corn field, and that he did time in federal prison for it, until the Supreme Court ruled in his favor.

Further, these regulations are enforced most often by local county or state authorities, so you’ll pay for it with local fees and taxes.

How groups line up on S787

It’s real easy to get multiple personality disorder over this bill by looking in your wallet. Trout Unlimited, a group close to the hearts of many in Sierra County, is for the bill. Most pro-agriculture and pro-farm groups are against it, even though there is a specific exemption for agriculture; the implications for ag are still ominous, particularly in the hands of zealous water enforcers eager to follow up on recent changes in California water law.

Clean Water Action
an organization with a history of clean water action, supports it and says it will "will restore longstanding safeguards for America's water resources and put us back on the path toward protecting all of our drinking water, lakes, rivers and streams."

The American Farm Bureau Federation, a locally respected organization, says "For the first time in the 36-year history of the act, activities that have no impact on actual rivers and lakes would be subject to full federal regulation."

Proponents of S787 have a powerful argument: the changes the bill seeks to fix are a legacy of the Bush years, a time when all nature was seen as a commodity, to be owned, exploited, and sold, and not as a unified, living legacy which has to be protected.

Opponents also have a powerful argument, nobody can go to excess like a bureaucrat, and that’s what’s happening in this bill. The bill seeks to extend the power of the feds over areas which are intended to be left to the state, or the individual. Further, it isn’t necessary. Really big polluters are immune to the Feds, and small landowners are vulnerable.

Most Americans want clean rivers and lakes. Many remember when rivers in the U.S. would occasionally catch fire. Past industrial practices have filled the rivers of the west with mercury, silted salmon streams and poisoned lakes.

Still, any water in Sierra County would be "waters of the United States" under this bill, since every drop of water eventually ends in the Feather River or the Truckee River.

There is no doubt that the bill will bring nearly every discernable surface water into water controlled by the federal government. Landowners are already nearly hamstrung by existing regulations over water, water courses and wetlands.

Read about it HERE


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