This is a rush transcript from "Special Report," May 29, 2014. This copy may not be in its final form and may be updated.
(BEGIN VIDEO CLIPS)
JACK FIELD, LAZY JF CATTLE OWNER: Water rights are a state recognized right in Washington state as they are in many Western states. It's very unclear what impact this rule could have on the availability of individuals to exercise their water rights -- would those waters come under the regulation of the Clean Water Act through the EPA? The additional regulation that's going to be brought forth by small businesses like mine is unbearable.
REP. DONALD PAYNE, D-N.J.: Do you really think that we can rely on moral integrity of businesses to not pollute our nation's waters?
REP. KURT SCHRADER, D-ORE.: This is ludicrous. I mean, I don't think anybody with a straight face can say that this is anything about a huge grab of jurisdictional power at the end of the day…. Not every dang small businessman has a lawyer in their pocket that they have on retainer that they can fight these things.
(END VIDEO CLIP)
BRET BAIER, ANCHOR: Democrats saying that they are very concerned about EPA potential regulations coming down the pipe about Clean Water Act. They would essentially define water sources that the agency can and cannot regulate.
We're back with our panel. Judge, this seems to touch a lot of different issues.
JUDGE ANDREW NAPOLITANO, FOX NEWS SENIOR LEGAL ANALYST: Well, it touches a lot of very profound constitutional issues about the right to own and maintain private property. This is not the Congress seizing this jurisdiction. This is an independent administrative agency proclaiming unto itself the power to regulate the tiniest bodies of water -- even seasonal pools and puddles of water on private property. This is authority that the Congress never gave to the EPA. This is authority that even the Constitution doesn't give to the Congress.
Look, at some point regulations becomes so burdensome, so onerous, it's the equivalent of the government taking the property or the equivalent of the government being physically present on the property. They will drive small businesses and they will drive small farmers out of business because these folks don't have the wherewithal to resist it.
Congress needs to stop it. It takes both houses of Congress to defeat a proposed EPA regulation. If both houses don't defeat it becomes the law of the land.
BAIER: Juan, to watch that hearing, some of the most vocal people who are against this potential move were Democrats.
JUAN WILLIAMS, FOX NEWS POLITICAL ANALYST: Well, I think, again, what you have is a situation where we have on Monday a huge announcement coming out of Environmental Protection about regulations on greenhouse gases. I think it's going to set off another wave of debate. This is a precursor to that, Bret. And, again, what you are talking about is the courts have said EPA has this regulatory authority. That was recently challenged, recently settled. I think this is where the administration feels they have to go with an intransigent Congress that's not getting things done. And then the question becomes, when you have something like water where it affects us all, it flows from one territory, one jurisdiction to another, what can we do within reason? The judge points out, small business could be impacted. But Donald Payne, the congressman you just heard, said are we going to trust moral authority of business not to pollute when it is to their advantage and when they can make a buck?
BAIER: Charles, we are talking this is a letter from a number of lawmakers, ditches, drainages, ponds, natural and manmade, prairie potholes and other occasionally or seasonally wet areas under federal control.
CHARLES KRAUTHAMMER, SYNDICATED COLUMNIST: This is insane. Juan, this is not the Mississippi. This is water in a trench. It's the federal government coming on your property and regulating water in a trench. This is yet another example of the inexorable, inevitable, eternal expansion of regulatory bodies. This is not in the bill. This is something that Republicans and Democrats ought to make very clear in legislatures outside of the EPA control. And it does crush small business. The big business -- agribusiness -- has all the lawyers it needs. It's the little guy who is crushed and that's going to be the result of this.
BAIER: We will follow this every step of the way.
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