Everything but the Kitchen Sink*

(*and maybe even that)
Jack Hoogendyk

Congressional Water Grab

Michigan, through its Department of Environmental Quality (DEQ) is one of only two states in the Union that regulates wetlands with a state agency rather than through the U.S. Army Corps of Engineers. This has been a problem because the state guidelines are much more strict than the federal guidelines. Additionally, the DEQ has proven to be arbitrary and capricious in its decision making and has often caused long 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, S787, which was sponsored by 23 other members (all Democrats including 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?

All surface waters will come under Congressional Control

The fact is, this legislation will put ALL surface waters in the United States of America 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.

Mudflats, wet meadows, prairie potholes

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 also declares that this applies to interstate and intrastate waters. That means there is no state sovereignty over waters within that state’s boundaries. And, if you have any doubt as to what the Congressional definition of “waters” is, they spell that out too. 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 this: Congress is taking over all the water. If the Obama administration and Congress are anything like this state’s administration, you will see free trade and commerce come to a virtual standstill. 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.

Hoogendyk distinguished himself as twice being named “most conservative” lawmaker in Michigan. Today, Jack serves as Executive Director of CIVPRO, a non-profit property rights organization.

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