Senate Moves To Restore Strong Protections For America's Waters
http://tinyurl.com/czaee5

Can this legislation finally give solid guidance for wetland regulation?

Should we mobilize (individuals and SWS as a whole) to support it?

Thanks,

Dave

Considering the loss of function occasioned by the loss of wetland we may want to support legislation to strengthen protection. But, that depends on what the legislation actually says, and it depends on keeping focus on lost functions.

Regarding the proposed Clean Water Restoration Act (CWRA) recently introduced in the US Senate, David McWhorter asked:

“…Should we mobilize (individuals and SWS as a whole) to support it?...”

Dear David,
I hope that SWS carefully evaluates the proposed CWRA before deciding whether to support it. The CWRA would attempt to re-impose federal regulation on non-navigable, isolated, intrastate waters, despite the fact that the US Supreme Court has consistently, specifically, and repeatedly ruled that this type of federal regulation is not authorized under our Constitution. If adopted in its present form, the CWRA would be immediately challenged in federal courts thereby continuing the paradigm of litigation based wetlands law.

If we can not amend our Constitution to authorize federal regulation of non-navigable, isolated, intrastate waters, then wetlands regulation must pass from the federal government to the states. The CWRA in its present form is not a good solution. A better solution at the federal level would be legislation that is carefully crafted to strictly adhere to the Constitutional limits on federal authority over land and non-navigable waters within a state.

"The CWRA would attempt to re-impose federal regulation on non-navigable, isolated, intrastate waters, despite the fact that the US Supreme Court has consistently, specifically, and repeatedly ruled that this type of federal regulation is not authorized under our Constitution. "

If you read the rulings carefully, this is NOT what the supreme court said. There has been nothing "specific" about the court rulings. That is why it is such a mess. I encourage everyone to educate themselves on the topic, before they make statements that are not true.
There are many resources. For example "Clean Water Act Jurisdictional Handbook by the Environmental Law Institute 2007". Also, Stephen Samuels, Assistant Chief of the Environmental Defense Section of the Environmental and Natural Resources Division of the U.S. Department of Justice, has spoke at SWS and ASWM conferences on this issue.

I think we should be debating whether or not the Federal Government SHOULD regulate all wetlands, including isolated wetlands and other waters without significant nexus to navigable waters. I say yes, they should. The current system where some are regulated, some are not (without clear measures to determine which waters are not are not regulated), doesn’t work well. A new law COULD simplify that whole issue (although congress isn’t very good at making things simple.)
At the same time, I think the corps/EPA should go back to on of the original goals of the wetland law and delegate total wetland authority to more states. This was done in Michigan and New Jersey, but the corps and EPA have been clawing back authority.
In short, I would like to see a well crafted law, but am afraid that a new law would end up making wetland regulation even more complicated.

Up until now, the Corps 404 program has been a court-driven, back-door, federal land-use regulatory program. For the federal government to actually and explicitly, by way of legislation, assert authority over land-use would be unprecedented. Such would constitute a monumental precedent. But this seems to be the season of monumental precedents in Washington.

Regarding US Supreme Court decisions that specifically removed federal jurisdiction from non-navigable, isolated, intrastate waters, Judy Krieg said:

“...this is NOT what the supreme court said. There has been nothing "specific" about the court rulings...”

Dear Judy,
The US Supreme Court decisions in SWANCC and Rapanos may appear to be muddled and confusing, especially to those who are not trained to understand complex legal documents. Government Attorneys such as Mr. Stephen Samuels and his colleagues at DOJ and EPA understand what the court said and this is why they decided to suspend enforcement action on over 400 CWA cases in 2008. I believe that most wetlands experts and regulators now reluctantly acknowledge that non-navigable, isolated, intrastate, intermittent and ephemeral waters are not subject to CWA jurisdiction. This will probably be the status-quo for a long time.

If the Obama Administration appoints more liberal Justices to the Supreme Court then the court could reverse its previous CWA decisions and avoid the need for legislation. However, any remedy from this Administration will have to wait until after climate change is addressed.

Today the EPA released a report which found that "greenhouse gases in the atmosphere endanger the public health and welfare of current and future generations." This is a sobering revelation to skeptics like myself. We can no longer deny the obvious. We have an obligation to future generations which requires us to set aside our petty squabbles over CWA jurisdiction and focus on the global environmental crisis, and try our best to save humanity from imminent catastrophe. If some of us survive, then maybe someday we will once again have the luxury of debating wetlands.

This message has been edited. Last edited by: Johnny Stevens,

Gee whiz, Johnny! What's a feller gotta do to generate some return fire around this place?! I thought you had as much as rolled a grenade right into the kitchen!

This message has been edited. Last edited by: Matt Reed,

The Clean Water Act is about Clean Water. That includes surface water and groundwater. Since surface water and groundwater can't be contained on one persons property (without some magical sphere around the property) it is linked to everyone, and every living creature and plant downgradient.

In my opinion, the isolated wetlands and non-navigable waters are all about clean water. What they contribute to groundwater and surface water quality is huge. I haven't personally measured it, but until I get solid, repeated and convincing data otherwise, that is what I will consider the obvious truth.

The error wasn't that these peripheral wetlands/waters were erroneously included, but rather not clearly included.

To paraphrase the words of Longfellow, who was translating someone else;
The mills of government grind slowly, but they grind exceeding fine.

My hope is that the current administration will see what is obvious to me, and fix the jurisdictional issue by clearly stating that peripheral wetlands and waters are essential to the quality of surface water and groundwater.

The need to prove that there is a connection to navigable waters is backwards thinking in my opinion. I am sure that the water goes somewhere and someday will be in somebody's coffee cup, even if it never touches the bottom of a canoe.

My 2 cents.

2 cents more.

If high priced lawyers and high level government and scientific folks are struggling with it, here are some reasons why.

The CWA starts off with this statement:
SEC. 101. (a) The objective of this Act is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.

This is very clear and general.

Then that flakey term "navigable waters" gets into the act and is repeated over and over again.

Then "navigable waters" is defined as:
SEC 502
“(7) The term ‘navigable waters’ means the waters of the United States, including the territorial seas.

So the general goal is clear but then defined by a specific term that seems clear but very limiting, and that term is defined as something that seems to be very general and more in line with the clear general goal.

If navigable waters means waters of the US, what does waters of the US mean? If you ask any 12 year old what waters of the United States means, they sure aren't likely to say only navigable waters should be included.

Patrick,

I'm not sure we want to adopt a standard of the twelve year-old straight-face test for interpreting federal statutes, but I like your thinking. I agree, Section 502(7) is troubling and confusing. It's unusual to clarify a specific term by making it more general. It would make more sense the other way - to clarify the term "waters of the United States" to mean "navigable waters". But let's get back to your twelve year-old. Let's take him to a Corps regulated red maple forest in August and tell him he's standing in a "waters of the United States" and see how straight he keeps his face.

Re: the 12 year old. Take him there in the spring when it is inudated or mushy then ask the question again.

Many of the floodplain wetlands look like upland some time of the year. So let me revise that to a 12 year old who can cope with a complex thought - like seasonal or ephemeral flooding.

Patrick,

Nicely turned. But I thought we were trying to avoid complex thought? You know, waters are waters - navigable, surface, ground or otherwise. You've forced me into a tired old cover tune, but isn't land, land? And only with much "complex thought" - some would say, cognitive dissonance - is land subject to the Clean Water Act.

Thanks for the dialogue Matt,

Of course it is an exaggeration to think that the whole wetland/waters of the US is really simple. It is however a lot simpler if it is evaluated by the "prime" objective.

SEC. 101. (a) The objective of this Act is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.

Only if it affects these factors is it relevant. Any exposed land that produces sediment, pollution, etc. is CWA related. Wetlands are just one piece (big piece?) of the puzzle.

Since there is so much "free" water quality treatment provided by wetlands, isolated or not; and so much wildlife/vegetation function provided by non-navigable waters, why would they be excluded?

Explain to a 12 year old why it is OK to fill an obvious wetland because it is 200+ ft away from a creek and not connected on the surface.

I can't imagine trying to do that with a straight face myself. I would feel like a fool for trying. But, the rules are the rules.

Patrick,

Every piece of major legislation has many sections. Each section is written to achieve one or more of the many expressed goals of the legislation. But we don't look for every section to achieve every goal. Nor do we look to the goals to define the terms of legislation. Section 404 is written in readily defined terms to achieve only a very narrow portion of the broad goals of the CWA.

Johnny said: “The CWRA would attempt to re-impose federal regulation on non-navigable, isolated, intrastate waters, despite the fact that the US Supreme Court has consistently, specifically, and repeatedly ruled that this type of federal regulation is not authorized under our Constitution.”

I thought that the SWANCC case basically said the Corps couldn’t use the Migratory Duck Rule to claim jurisdiction over isolated wetlands under the Commerce Clause of the constitution. It seems like it wouldn’t be impossible for Congress to come up with some other justification to expand federal jurisdiction to isolated wetlands.

The Rapanos case was about how not all waters are “Navigable Waters”. That is much easier for congress to expand the corps jurisdiction by simply eliminating the work “Navigable” from the Clean Water Act.

Andrew said:

"...It seems like it wouldn’t be impossible for Congress to come up with some other justification to expand federal jurisdiction to isolated wetlands..."

Dear Andrew,
Our Constitution is the legal force that deconstructed CWA jurisdiction and this can not be easily reversed by Congress or federal agencies.

Since the SWANCC decision in 2001, there have been no new regulations or legislation that change CWA jurisdiction. The EPA and Corps attempted to re-establish jurisdiction by using unofficial guidance documents and regional supplements, but under this approach compliance is voluntary and not enforceable.

Brother Matt is correct, the key issue is federal regulation of land use via environmental regulations. The arguments for re-expanding CWA jurisdiction are predicated on speculative pollution impacts and hypothetical hydrology connections. These arguments mimic trendy environmental rhetoric, are technically vague and demonstrably unpersuasive. I have seen no hard evidence that factors related to CWA jurisdiction are actually causing major and significant pollution impacts to our Nation’s waters. The lack of urgency on this issue may be attributable to the long term trend of improvement in the overall quality of our Nation’s waters since the advent of the CWA in the 1960’s.

As time goes on, it is becoming increasingly clear that Constitutional restrictions on federal regulation of intrastate land and waters is the controlling law governing CWA jurisdiction. A Constitutional amendment may be necessary to change the status-quo and restore CWA jurisdiction to its pre-SWANCC boundaries.

This message has been edited. Last edited by: Johnny Stevens,

Mr. Stevens:

In your argument, it infers that re-expansion of jurisdiction is based on "speculative" pollution impacts, but in the last sentence, it states that this same "re-expansion" (which is in essence going back to how things were done pre-SWANCC) has resulted in a long-term trend of water quality improvement.

So which is it? Is going back to the "old" way of doing things really the best for the environment, and wetlands in particular? Is ascerting jurisdiction over wetlands that might be "isolated" essentially reducing inputs of pollution in the upper reaches of a watershed, which includes non-wetland/water areas, beneficial to those downstream "navigable" waterbodies? Or are we really seeing the benefits of the 401 and 402 CWA programs versus the 404 program?

Dear David,

Thanks for your insightful question and allowing me the opportunity to clarify. The driving force behind the long term trend of improvement in the overall quality of our Nation's waters, are Sections 401 and 402 of the CWA. As you correctly point out, Section 404 was enacted for conservation purposes, not pollution control.

Years ago, I attended a seminar where I learned there are two broad areas of human impacts which are regulated by our environmental laws – pollution and land-use. The Clean Air Act, Sections 401 and 402 of the CWA, RCRA, and other such laws regulate pollution. Habitat for endangered species, NEPA, watersheds, and wetlands are examples of federal environmental regulation of land-use.

There are many good reasons for protecting isolated wetlands/non-wetlands/waters. We should conserve our natural resources as much as reasonably possible. Since the SWANCC decision in 2001 there has been a general decline in the federal wetlands regulatory program. However, I have not personally seen hard evidence of significantly greater impacts to isolated wetlands. I believe that state and local laws and standard industry practices regarding wetlands (along with the current economic recession) has resulted in an on-going system that provides some level of protection for most isolated wetlands in America.

This message has been edited. Last edited by: Johnny Stevens,

Johnny,

That's a distinction that cannot be over-emphasized nor repeated too often: In the world of environmental law, there is pollution control and there is land-use regulation. And the attempt to conflate the two in the Corps 404 regulatory program has been the source of a world of confusion.