Navigating "Navigable"

Congress is known for having arcane battles, but the biggest fight these days in water law is over a single word — and Texas environmentalists and ranchers are anxiously awaiting the outcome. At stake is the future of the Clean Water Act, a 1977 law designed to reduce pollution in America's waterways. The law, which was built on a 1972 law of a different name, refers to "the discharge of pollutants into the navigable waters" of the United States. But what does "navigable" mean? The Supreme Court has weighed in on the question twice in the last 10 years, and while appearing to narrow the term's definition, it has also left everybody confused. Now Congress is considering whether to remove the word "navigable" altogether, leaving the phrase to read, simply, the "waters of the United States." The Senate passed a bill out of committee a year ago that would strike "navigable," and a similar bill was introduced last month in the House. Landowners and farmers hate the idea; they describe it as government overreach, certain to lead to needless regulation and extra costs. Environmentalists say the opposite: that many of the small, non-"navigable" streams that currently escape regulation are an essential part of the nation's drinking supply and need oversight. Ranchers fear that the drainage ditches and stock tanks will be subject to regulation if "navigable" is struck from the law. "Ranchers would have to go get a permit from federal government before they could build any sort of livestock watering tank," said Jason Skaggs, the executive director for government and public affairs at the Texas and Southwestern Cattle Raisers Association. Kirby Brown, the vice president for public policy for the Texas Wildlife Association, which represents many private landowners, argues that striking the term navigable would "remove the basis of the law itself, which is the Interstate Commerce Clause." Brown emphasized that his group wants to see wetlands protected. But he thinks there are other ways to achieve this...more