What an interesting concept. Would this apply to other words in other statutes? If everyone agrees a word or phrase no longer means what it says then the original intent of Congress can be changed without amending the statute? And just when did this agreement about the meaning of navigable occur? The Constitution says that all legislative powers are vested in Congress. Is that no longer the case?
Whenever I encounter this "words no longer mean what the say" phenomenon,its always in the context of expanding the powers of government. It seems to never occur when it comes to limiting those powers.
George Leef writes:
When Congress passed the Clean Water Act in 1972, it was exercising its power to regulate interstate commerce by prohibiting discharges into the nation’s “navigable waters.” If a body of water could be used to transport goods from one state to another, it was covered by the Act.
Like so many other statutes enacted over the last 80 years – that is, since the advent of the administrative state under FDR – the Clean Water Act (CWA) depends on bureaucratic interpretation and enforcement.
The two entities involved with the CWA are the Environmental Protection Agency and the Army Corps of Engineers. Both have tried to expand the scope of their regulatory power by issuing rules that defined “navigable waters” so broadly that they have (or at least claim to have) authority over many bodies of water that couldn’t possibly be used to transport so much as a paper clip between states.
Twice, the Supreme Court has slapped down rules that amounted to a rewriting of the law to suit the zealous regulators.
First, in Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (2001), the Court ruled that the Army Corps had no authority to assert control over isolated bodies of water – in that particular instance, an abandoned sand and gravel pit.
You might think that the lesson would have sunk in, but in 2006 the Court had to deal again with another creative interpretation of the CWA in Rapanos v. United States. The EPA had asserted that it could prevent a landowner from doing anything with a wetland that was near a ditch that eventually drained into navigable water. The Court again ruled that the agency had overstepped its bounds.
And here we go again, with a new definition that would include, "...virtually any wet spot – or occasionally wet spot – in the country, including ditches, drains, seasonal puddle-like depressions, intermittent streams, ponds, impoundments, prairie potholes, and large ‘buffer areas’ of land adjacent to every waterway.” When will Congress act to resolve this situation? If they don't, we'll all continue to be the victims of this bureaucratic battle to limit our property rights and other freedoms.