quote:

Originally posted by Johnny Stevens:
Footnote 16 of the Guidance memorandum clearly states that is is not a new rule or regulation and imposes no binding legal requirements on anyone. It would be inappropriate for the Guidance to be applied as if were law.

But if we are using the guidance on sites right now and for the next 6 months, doesn't that mean it is at least a "6 month law"? If things change in 6 months, will we redo all those sites?

I agree with you Johnny, there is a lot of good info here, it was just never put out for public comment and dumped in our laps. But it is guidance and info we have been lacking for many years, so I am glad we have SOMETHING to use right now!

Matt, can't help you w/ Dave's comments, I don't know where he is going with this. The trininty comment that is capitalized and in bold is too close to a religeous reference for my comfort. ... and Dave, your reply is equally uncomfortable as there seems to be an unintentional blur of distinction between church and state, but is a common thought. In my experience, many want to regulate the environment and other's land as if they were God.

Chip,

My guess is that David is merely being cute with his "Integrity Trinity" reference (Physical, Chemical and Biological Integrity, get it?). Rest assured, he means no disrespect to the Holy Trinity. Though, he has exhibited an inclination toward an omniscient and omnipresent regulating authority.

Chip,

Religious connotations never crossed my mind regarding the Integrity Trinity (yes, Matt does know what I am talking about... he's just playing opossum), but come to think of it perhaps the Legislature was open to some sort of divine guidance since canonizing (somebody stop me!) physical, chemical, AND biological integrity into law at that time was ahead of its time. Although our Nation's waters have reached above 80% chemical intergrity, many say they are only a little better than 50% biological integral. I am guessing that with the continued rise in population and development their physical integrity will continue to degrade.

PS - I am not with the gov so there is no blur of the very important separation of church and state. Please don't be uncomfortable, I am actually Ignostic.

Matt,

Crawfishin' is colloquial for backing out of a deal. I repeat:

Anything that has a significant impact on interstate commerce constitutes a significant federal nexus eh?

David,

Thanks for your reply. Okay, I understand a little more but help me a bit. When you say that our waters are above 80% chemical integrity, are you saying it is 80% degraded or 80% of what it should be?

The trinity component as you describe it is a new one on me although I agree with the importance of all three components, just never heard of them described in this manner. Can you point me to some material on this so that I may better understand? Sounds like something I'd like to learn more about.

Thanks! (and thanks again for your above reply)

David,

Interstate Commerce!?! Absoulutely, positively, NOT! Now, you're playing opossum!

With regard to the CWA, we start with navigable waters, not interstate commerce. Under the current understanding, anything that has a significant nexus to NAVIGABLE WATERS is considered to be "waters of the United States".

Chip,

As I understand the blurbs that I have read, meaning that I do not closely follow the progress of CWA enactment, only ~20% of our Nation's waters are chemically impaired, which I guess means they do not meet their designated beneficial use criteria. I think you should look into the NPDES program publications for more on this.

The growing work on bioassessment, such as James Karr's "Index of Biological Integrity" is showing that CWA programs have not reached the level of success with biotic integrity that they have with chemical integrity. I have only begun to study bioassessment (over the past 6 months), so I should have a better answer for you in a couple of years...

Are you saying that you have never heard of the three integrities (chemical, physical, and biological)? If not, then you can read over the CWA itself:

TITLE 33 > CHAPTER 26 > SUBCHAPTER I > § 1251
Congressional declaration of goals and policy

(a) Restoration and maintenance of chemical, physical and biological integrity of Nation’s waters; national goals for achievement of objective

The objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. In order to achieve this objective it is hereby declared that, consistent with the provisions of this chapter—

(1) it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985;

(2) it is the national goal that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, s****fish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983;

(3) it is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited;

(4) it is the national policy that Federal financial assistance be provided to construct publicly owned waste treatment works;

(5) it is the national policy that areawide waste treatment management planning processes be developed and implemented to assure adequate control of sources of pollutants in each State;

(6) it is the national policy that a major research and demonstration effort be made to develop technology necessary to eliminate the discharge of pollutants into the navigable waters, waters of the contiguous zone, and the oceans; and

(7) it is the national policy that programs for the control of nonpoint sources of pollution be developed and implemented in an expeditious manner so as to enable the goals of this chapter to be met through the control of both point and nonpoint sources of pollution.

...

If you were already aware of this then let me know and I will see what I can dig up for you.

EDIT: James Karr cites Aldo Leopold's "Sand County Almanac" as an earlier publication on "integrity". I am looking into this now.

David

quote:

Originally posted by Chip Jackson:
David,

Thanks for your reply. Okay, I understand a little more but help me a bit. When you say that our waters are above 80% chemical integrity, are you saying it is 80% degraded or 80% of what it should be?

The trinity component as you describe it is a new one on me although I agree with the importance of all three components, just never heard of them described in this manner. Can you point me to some material on this so that I may better understand? Sounds like something I'd like to learn more about.

Thanks! (and thanks again for your above reply)

This message has been edited. Last edited by: David Thomson,

Matt,

You are correct in that "the letter of the law" designates navigable waters as the CWA nexus with interstate commerce. But what I was getting at was what you and I both agreed needs to occur: the Legislature needs to update the CWA's nexus language - specifically addressing the nexus. And what I was hinting at is what you already joked about just a bit ago...

Water is Life.

And is therefore a significant component of everything, including all interstate commerce. If we do not secure our water resources we jeopardize everything, the least of which (in my opinion) is interstate commerce.

The problem is not that the Federal Government has regulatory authority over all water found within the United States (i.e. Waters of the U.S.). The problem is that there are quite a few citizens who do not appreciate they must make sacrifices not only for the good of us all, but for the good of their descendants.

(I am not stepping off the soap box.)

quote:

Originally posted by Matt Reed:
David,

Interstate Commerce!?! Absoulutely, positively, NOT! Now, you're playing opossum!

With regard to the CWA, we start with navigable waters, not interstate commerce. Under the current understanding, anything that has a significant nexus to NAVIGABLE WATERS is considered to be "waters of the United States".

David,

I'm not sure what you think "we both agreed NEEDS to occur." But, for the record, I believe Congress is limited to protecting navigable waters by the Commerce Clause, and I favor a narrow, common parlance understanding of "navigable waters". Mind you, protecting the navigable waters requires regulating discharges of pollutants that may reach navigable waters, wherever they occur (See Section 402, CWA). But not fill or dredged material. They're different (See Section 404, CWA).

I am referring to our agreement on this page.

But you have made a more interesting statement here. Are you saying that the only significant Federal nexus with the Commerce Clause is "navigability"?

US Constitution; Article I, Section 8To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

Or are you saying that is the only nexus because it is the only one identified in the CWA? If the second, then I am stating that the Legislature can and should expand the CWA to include a list of nexi.

quote:

Originally posted by Matt Reed:
David,

I'm not sure what you think "we both agreed NEEDS to occur." But, for the record, I believe Congress is limited to protecting navigable waters by the Commerce Clause, and I favor a narrow, common parlance understanding of "navigable waters". Mind you, protecting the navigable waters requires regulating discharges of pollutants that may reach navigable waters, wherever they occur (See Section 402, CWA). But not fill or dredged material. They're different (See Section 404, CWA).

David,

I suppose one could wring some tortured agreement from that exhausted concession. But more to the point, as you say, is the present.

Yes, indeed I would like to maintain that position, restated from your phrasing as follows:

The only handle that Congress has on regulating anything is the Commerce Clause. Congress must show that they are regulating interstate or foreign commerce (preferrably, directly) in order to have the power to regulate anything. And the only reasonable direct link to regulating commerce on the nation's waterways is commercial navigation, ergo "navigabilty". Anything else is sort of tortured and quite attenuated.

But I commend you for getting on the track of the Commerce Clause, federal power, and the like.

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

Regarding navigable waters, Matt said:

"... And the only reasonable direct link to regulating commerce on the nation's waterways is commercial navigation, ergo "navigibilty". Anything else is sort of tortured and quite attenuated..."

Dear Matt,

The Corps and EPA seem somewhat tortured and attenuated on the subject of navigable waters. When they issued the Rapanos Guidance documents on 6-5-07 they referenced a document explaining "Traditional Navigable Waters" but did not publish it because it was not ready at that time (item D on website below).

Currently, the Corps and EPA have still not defined how the term "Traditional Navigable Waters" will be applied under the new Rapanos Guidance.

Historically, the Corps used recreation such as canoeing, as a basis for defining navigable waters. After SWANCC, Rapanos, and other relevant court decisions, the definition of navigable waters has changed and we must patiently wait for the Corps and EPA to issue their guidance on this matter.


http://www.usace.army.mil/cw/cecwo/reg/cwa_guide/cwa_guide.htm

Matt,

I agree, that the use of navigable waterways by commercial traffic is indeed an obvious nexus with the Commerce Clause. But I was trying to point out that the integrity of our Nation's waters plays a significant role in all commerce because without water everything fails, from personal health to industrial processes. No water - no commerce. Therefore, I would argue that the Commerce Clause grants the Federal Government jurisdictional authority over all water found within the U.S.

But I have discovered that we are not interpreting the Commerce Clause correctly... the discussion on the CC at Wikipedia argues that the modern interpretation of "commerce" as only indicating "economic activity" is likely not the meanings it contained in the late eighteenth century English:

quote:

From Wikipedia:

History

The founders' understanding of the word "commerce" is unclear. Although commerce means economic activity today, it had non-economic meanings in late eighteenth century English. For example, in 18th century writing one finds expressions such as "the free and easy commerce of social life" and "our Lord's commerce with his disciples".[1] Interpreting interstate commerce to mean "substantial interstate human relations" is consistent with much additional primary source evidence concerning the meaning of commerce at the time of the writing of the Constitution.[1][2] This interpretation also makes sense for the foreign and Indian commerce clauses as one would expect Congress to be given authority to regulate non-economic relations with other nations and with Indian tribes.

There is a summary of some Supreme Court rulings on the matter. I note that your buddy Scalia appears to flip-flop on the issue as suits his politics on controlled substances but that is a separate discussion and we should resist becoming sidetracked!

David

quote:

Originally posted by Matt Reed:
David,

I suppose one could wring some tortured agreement from that exhausted concession. But more to the point, as you say, is the present.

Yes, indeed I would like to maintain that position, restated from your phrasing as follows:

The only handle that Congress has on regulating anything is the Commerce Clause. Congress must show that they are regulating interstate or foreign commerce (preferrably, directly) in order to have the power to regulate anything. And the only reasonable direct link to regulating commerce on the nation's waterways is commercial navigation, ergo "navigibilty". Anything else is sort of tortured and quite attenuated.

But I commend you for getting on the track of the Commerce Clause, federal power, and the like.

David,

Ah, controlled substances. Would that be the medical marijuana or the assisted suicide case to which you refer? Scalia was with the majority deciding that marijuana is a substance involved in interstate "commerce" (see Wikapedia) and rightfully subject to federal control even when it's homegrown for personal use and never sold. That decision was based on the concept that if Congress is to successfully assert its authority in controlling the growing of something like marijuana, anywhere, it must control it everywhere. Even in your basement, er, ah,...in somebody's basement. Otherwise, there'd be no ability to control it anywhere, rendering Congress impotent. (We wouldn't want that, now, would we?)

That one seems to stick in the craw of a lot of my liberal friends for some reason. But Nino's legal reasoning was tight as ever. And the same reasoning was applied to a farm commodity pricing case back in the forties. No "High Times" politics.

Back to the navigability question. Even allowing for the basement marijuana reasoning, Congress can successfully assert its authority over the discharge of dredged or fill material into the navigable waters and confine its regulating authorty to the navigable waters without controlling that activity everywhere. The same may not be true if we're talking about the discharge of paint thinner. As I've stated before, ergo Section 402 and 404 of the CWA.

Even with the old English and perhaps the founders' understanding of the word "commerce" to include non-economic activity, it still implies movement and travel. So, navigabilty is still relevant and a limiting factor in determining the reach of federal authority in regulating water-borne commerce.

You seem to want to say that water, as a commodity, is important to commerce, anywhere. So therefore, Congress can assert its authority to regulate water, everywhere. Water IS, indeed, important to commerce, everywhere. But first of all, Congress asserted its authority over "waters" in the CWA, not "water". And even if it did go back and try to assert its authority over "water" in the CWA, it's still not the same reasoning as the basement marijuana case. In fact, it's the inverse of that reasoning.

By your reckoning, there would be no practical limit on the reach of Congressional authority over water. And that would cause another Constitutional law axiom to kick-in: If a line of reasoning renders a Constitutional principle, like enumerated and limited powers, meaningless, then that line of reasoning is invalid...or something like that.

I'mma gonna get myself in trouble if'n I tries to play Constitutional lawyer, anty-more. So's I'mma gonna hush.

Matt,

Interesting flip-flop rationale... I would have thought one arguing for State's rights would not have found it so easy to side with a Federal Government who ignored State Law (medical marijuana). The good side to that story was in protest the City of Santa Cruz held a "pot party" on the steps of City Hall, where the city council handed out marijuana to the cheering crowd - warms the heart eh? The bad side of that story is the Federal drug seizure laws allow the Fed to keep any property seized during a raid without ever charging the owner with a crime - ain't that a crime?!? Well it's enough of an injustice for several municipalities to order their departments to not comply with DEA requests for assistance in these matters. By the way, they don't try these cases because the last time they did the Federal Judge threw the U.S. Attorney out on his ear, after admonishing his administration for abandoning their Party's platform...

Anyways, yeah dredge and fill can negative effect navigation - Section 10 of the Rivers and Harbors Act covers that issue - but the CWA is not about navigation, its about "... restoring the physical, chemical and biological integrity of our Nation's waters..." Navigation was the Federal Nexus with the Commerce Clause stated in the CWA. Navigation means nothing to clean water unless said water is on fire, which used to occur occasionally back before the CWA started rolling.

You and I both seemed to agree that if the Legislature wants Federal Agencies to regulate all Waters of the U.S. then they should amend the act to make that clearer. I was offering a rationale as to how that might work, however awhile ago I had the thought that perhaps the Legislature is not upset enough about interpretations of the CWA to spur them into action. Although the current Supreme Court may change their view of this...

I believe the old English understanding of commerce was stated clearly in the quote I posted above: "substantial interstate human relations", which includes more than just movement, travel, and economic activity. The reasoning offered in that Wikipedia quote was convincing to me: "This interpretation also makes sense for the foreign and Indian commerce clauses as one would expect Congress to be given authority to regulate non-economic relations with other nations and with Indian tribes."

I was not thinking of water as a commodity, although that is a good addition to the issue. I was thinking of the role water plays in everything. You seem to appreciate this point but fear the implications of it on the extent of Federal authority. I don't think that would necessarily cause Federal authority to exceed enumeration or limit (although it could with the wrong people in office...). The limit could be "significant waters" as in the role played by said water in the physical, chemical and biological integrity of our Nation's waters. I believe the scientific community has performed this analysis for most classes of waters already.

David,

I can't take it. I give up. I'm thinkin' of headin' out west to hang-out on the Santa Cruz City Hall steps with my "states' rights" brothers and wait for another hand-out. We can only hope that by the time I get there, the federal government hasn't decided to include my cross-country bong water in a new Clean Water Act definition of "waters of the United States". That would be a real bummer!

(Nothin' like a couple bong hits to improve those interstate human relations, maaaaan!)

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

I told you we should have resisted becoming sidetracked. The CWA stuff is much more important HERE than the politics of controlled substances.

Speaking of which, I think our prayers may have been answered!

Clean Water Restoration Act

I am looking into it currently to see what they are up to...

Regarding the proposed Clean Water Restoration Act, David said:

"...I think our prayers may have been answered!..."

Congress has been trying to update and amend the Clean Water Act for almost twenty years and for one reason or another, it never seems to happen.

Back in the early 90's when Bush Sr. was President, it was the first war in Irag that diverted attention from the CWA. Under the Clinton Administration, CWA legislation was overshadowed by Paula Jones and the Lewinsky affair.

Even though new CWA legislation is badly needed, it is unlikely that it will happen soon. The war on terror and global warming have priority over the CWA.

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

quote:

Originally posted by Johnny Stevens:
...
Even though new CWA legislation is badly needed, it is unlikely that it will happen soon. The war on terror and global warming have priority over the CWA.

Perhaps you are right and the CWA is overshadowed by The Boogey Man Hunt, but I was thinking that (again perhaps) the legislature may not have been displeased by the Executive and Judicial Branches' interpretation and implementation of the CWA - as it stands - and therefore has not bothered to devote time to it.

That might be changing with recent changes in the Supreme Court and their subsequent decisions. Perhaps this will be enough to prompt them to devote time to the CWA and end this useless debate. I know Mr. Reed would appreciate it!

David,

Thank you for thinking of me. But, I don't think Congress wants to touch the CWA. Not now. Not ever. Never. Especially Section 404.

The intent and purpose of Section 404 has always been pretty clear. In fact, I don't know how it could be made clearer. It's only after decades of bad court decisions based on agenda-driven stretched meanings and distortions that the waters have become so muddied. We need to just read the words of the original act as they were written without imputing our own hopes and dreams into their intent and everything will be just fine.

Justice Scalia made a valiant effort to do just that. But he couldn't quite prevail. Nothing the congress can do at this point will help. Not unless they want to formally embark upon a federal land use regulatory program. And I think they are loathe to do that. Even this congress.

Matt said:

“...Nothing the congress can do at this point will help. Not unless they want to formally embark upon a federal land use regulatory program. And I think they are loathe to do that. Even this congress...”


Dear Matt,

As you correctly point out, there is little that Congress can do to fix Section 404 of the CWA other than proposing an amendment to the U.S. Constitution giving the federal government the right to regulate local land use inside the states.

In the absence of constitutional authority, it appears that the Corps is now limited to using unofficial guidance that imposes no binding legal requirements, such as the recent Rapanos Guidance documents.

After a six month trial period and public comments, the Corps will decide whether to revise, re-issue, or withdraw the Guidance. If the Rapanos Guidance lacks legal authority then what difference does it make whether it is revised, re-issued, or withdrawn?

A great Wetlands Sage once said:

"...We need to just read the words of the original act as they were written without imputing our own hopes and dreams into their intent and everything will be just fine..."