Matt,

I was envisioning a new Section, one that codified the evolution of CWA interpretation and enforcement, particularly the term "Waters of the U.S.". This new Section should detailed the, dare I say it, seemingly infinite significant federal nexi (after all, water is life) possible that evoke the Commerce Clause (in it's full intent - as discussed above). This would grant regulatory authority to Federal Agencies over both inter- and intrastate waters that have a significant impact on "commerce".

Note that "power" is and still would be limited (enumerated) by the term "significant". One thing that everyone must realize is we began this quest for Clean Water "behind the 8-ball", or way down in the hole, so significance must be viewed in that light. We must be prepared to make the public and personal sacrifices necessary to secure our nation's waters.

The Clean Water Act is an essential piece of Federal Legislation, one that will require additional reach (i.e. power but perhaps just enforcement) if it is to reach the necessary goal of securing the physical, chemical, and biological integrity of our nation's waters.

From the Rapanos Blog

On July 17, 2007, PLF attorney Reed Hopper testified before the House of Representatives Committee on Transportation and Infrastructure. The hearing was entitled: Status of the Nation's Waters, Including Wetlands, Under the Jurisdiction of the Federal Water Pollution Control Act (As amended by the Clean Water Act). In addition to comments about the Rapanos decision and the new Corps/EPA Guidance, Mr. Hopper also gave an analysis of the proposed Clean Water Restoration Act--H.R. 2421 :

The [proposed Act's] definition of federal authority is not a "restoration" of congressional intent. It far exceeds the jurisdictional scope of the current Clean Water Act as it appears in the text of the statute. It even exceeds the extravagant scope of the existing federal regulations on which this definition is, in part, based. Indeed, with its claim of authority over "all interstate and intrastate waters," this bill pushes the limits of federal power to an extreme not matched by any other law, probably in the history of this country. Neither an ornamental pond nor the proverbial kitchen sink are excluded.

To read the full testimony click here:

http://rapanos.typepad.com/my_weblog/

Johnny,

Thanks for the link. Good stuff. An excellent antidote for the prevailing mentality.

Sounds to me that we could save a lot of time, frustration, and certainly paperwork, if we just all agreed that the Corps' regulatory program has evolved into a Federal land use regulatory program. If the Federal government wants to control what you are doing, they will find a way. There are enough words in the new guidance document to support any conclusion any regulator might want to make.

"... And so, my fellow Americans: ask not what your country can do for you - ask what you can do for your country. ..."

- JFK

Ah, David,

Our friend Johnny Stevens has it right. Do you want to amend the Constitution to allow for greater federal reach over "wet land" and every drop of rain that falls? If so, then lobby for such. But the Clean Water Act reaches about as far as Congress is Constitutionally empowered to reach. The courts and the bureaucrats have been pushing it beyond its limits for nigh onto forty years.

JFK's famous inaugural admonition for Americans to accept the responsibilities that must accompany freedom should hardly be invoked as a call to trash the Constitution.

Mr. Bonner is exactly right. The "guidance" is ripe for opportunities of bureaucratic mischief. And this is precisely why it will not stand very long in its current form. Within a week of issuance, the Corps revoked its own guidance definition of TNW. We haven't yet seen its re-emergence, and I guess it is permanently dead (please excuse my redundancy, but Corps' interpretations have a tendency toward spontaneous generation).

Even Justice Kennedy, the father of the very significant Significant Nexus Law, warned the agency not to use his brainchild in a free-wheeling manner.

Despite the panting disclaimer written into the guidance, it has the distinct odor of a "rule". I would not be surprised if the NAHB or some similar group challenged it in the DC District Court (much like their recent challenge of NP46).

The Corps must soon decide whether or not it wishes to die on the banks of some godforsaken ditch.

Jeff said:

"...Within a week of issuance, the Corps revoked its own guidance definition of TNW. We haven't yet seen its re-emergence, and I guess it is permanently dead..."

Dear Jeff,

I went to the Corps' website and found the recently posted document on the legal definition of traditional navigable waters for the Rapanos Guidance.

Has this guidance document been revoked? Or, is this the Corps' latest definition of traditional navigable waters?


http://www.usace.army.mil/cw/cecwo/reg/cwa_guide/app_d_...navigable_waters.pdf

Jeff said:

"...Mr. Bonner is exactly right. The "guidance" is ripe for opportunities of bureaucratic mischief. And this is precisely why it will not stand very long in its current form..."

Recently, I was on a project where the Corps was conducting a jurisdictional detemination using the new Rapanos Guidance. They showed me the new 8-page JD form. Many of the check boxes were blank. In fact, whole pages were blank.

The Corps explained that it is a new process and they are learning how to apply it. Much of data needed for the JD form was not available yet.

The JD form has many imbedded "Pick Lists" that will eventually be generated by computer when the JD form is fully digitalized.

They were working on the significant nexus portion of the JD form when I left.

Afterwards, I heard that the Corps plans to return to the site and collect more data.

Matt,

My intent was to highlight the sad fact that some Americans are not prepared to make the “personal sacrifices” necessary to secure our nation’s waters (and we cannot forget this ruckus is created by a very vocal minority). I put sacrifices in quotes because I hesitate to call them true sacrifices; this minority is not in the tax bracket that usually ever faces actual sacrifices. They continue to stir up trouble in the press (such as here). This is one reason why I trouble to contribute to these threads, aside from my belief that some posts are misleading and attempts at clarification could be of benefit to others.

As I understand it, your platform is the agencies are overreaching their statutory mandate. When I met you there and said the Legislature could clarify their mandate within the bounds of the Constitution you disagreed and said they have no further reach within the bounds of the Constitution. You have already stated you are not a Constitutional lawyer, and neither am I so we will have to give up on any substantive argument there – just two informed opinions brushing dust from their lapels eh?

By the way, the Legislature had already asserted jurisdiction over “every drop of rain that falls”, via the Clean Air Act. And they did a **** good job of it too, creating one of the best cost-to-benefit ratios of any Federal Program (according to the GAO) in the history of the USA, until the recent crop of Legislators gutted it, for the few…

PS – I prefer Oliver Wendell Holmes, Sr. version of that sentiment, from his Memorial Day address in 1884: “… it is now the moment when by common consent we pause to become conscious of our national life and to rejoice in it, to recall what our country has done for each of us, and to ask ourselves what we can do for the country in return.” I wonder if most of the “some” I mentioned above forget too easily what their country has done for them.

quote:

Originally posted by Matt Reed:
Ah, David,

... Do you want to amend the Constitution to allow for greater federal reach over "wet land" and every drop of rain that falls? If so, then lobby for such. But the Clean Water Act reaches about as far as Congress is Constitutionally empowered to reach. The courts and the bureaucrats have been pushing it beyond its limits for nigh onto forty years.

JFK's famous inaugural admonition for Americans to accept the responsibilities that must accompany freedom should hardly be invoked as a call to trash the Constitution.

Well I've certainly learned the value of the "wait and see" philosophy. Had I maintained my silence yesterday regarding the TNW guidance, I would not be eating crow today. In my defense I can only say that I have recently been conditioned to expect long delays and hollow silences from the Corps' braintrust in Washington.

I should add that I sympathize with the plight of the DC bureaucrats tasked with managing the SWANCC/Rapanos juggernaut. Theirs is a difficult task; trying to do the right thing, and worse, trying to decide which is the right thing to do.

To his everlasting credit, and my ashen horror, Johnny Stevens directs our attention to the Corps' website, at which they have posted their *ahem* revised TNW guidance.

I see that the Corps has added two relevant court cases to the guidance and demoted two cases to footnote status. The latter two have apparently been footnoted because they are not decisions by the Supreme Court (like the others) but those of lower courts (I suppose giving them slightly less weight). The two new references are useful additions to the guidance.

In "Holte State Bank" the SCOTUS states that if a stream is proven to have the potential as a channel of commercial navigation, then it is navigable-in-fact even though it has never been used for that purpose.

In Utah v. US, the Scotus determined that if a waterway has a history of use as a non-commercial "highway", then it is also susceptible to use as a commercial highway and, therefore, navigable-in-fact.

The footnoted cases are used to support Utah v. US. They are examples of navigability tests accepted by the lower courts to prove the susceptibility to commercial navigability of waterways having only non-commercial navigation or no apparent navigation at all.

Obviously there is a limit to the applicability of such tests. Suppose the Corps shows up at your home one day and paddles a kayak across your swimming pool. Is this a valid test proving the susceptibility of your pool to commercial navigation? Perhaps. But what if the kayak is too large to fit within the pool, but the intrepid regulator puffs up his inflatable rubber ducky and has a successful test?

What then?

I wonder what Justice Holmes would have said about what your country has just done for you.

As I followed this thread, one issue seems to have been lost. At last count, there were 50 states, and every state has the authority to step forward and establish their own programs for wetlands or other waters within their boundaries. Some states already have, and some of those programs are much better than the Corps' program. The lack of a federal handle to every ditch and wetland does not spell doom and gloom. As I recall from high school civics, "states' rights" was a critical issue when the constitution was being written. I have to politely disagree with Mr. Thomson, and others. It is not necessary for the Federal government to regulated the entire water cycle. You do not want the Federal government in control of everything. As an added note, you could go a long way to reduce global warming if you saved the trees the Federal government now consumes to feed its paper process.

It probably was in another thread, but I believe we did discuss the fact that the Fed has happily handed over the CWA to states enforcement when their programs have met the Fed's expectations. There is at least one such instance, in New England, where the states are now in complete charge of CWA enforcement from NPDES to Section 404; the Fed is merely a "rubber stamp" in that region (i.e. programmatic permit for the state's programs).

I am sure the Fed would be more than happy to hand over CWA enforcement to the states when their programs are up to speed. I did casually discuss this with a Corps representative in the San Francisco District and he said that they had tried to complete that process for California some time ago but it failed. Sorry, but we didn't go into details.

Your solution would be idea from all perspectives, unless you are a state ducking responsibility. One thing I might add regarding California: since the Supreme Court has begun diminishing the ability of Federal agencies to enforce the CWA (Mr. Reed might say over-enforce but that is a point of contention) the State Water Resources Control Board, under the authority of the Porter-Cologne Water Pollution Control Act, stated that even though the Corps would no longer be regulating so-called isolated waters they would... fully.

Does that help?

quote:

Originally posted by Edward Bonner:
As I followed this thread, one issue seems to have been lost. At last count, there were 50 states, and every state has the authority to step forward and establish their own programs for wetlands or other waters within their boundaries. Some states already have, and some of those programs are much better than the Corps' program. The lack of a federal handle to every ditch and wetland does not spell doom and gloom. As I recall from high school civics, "states' rights" was a critical issue when the constitution was being written. I have to politely disagree with Mr. Thomson, and others. It is not necessary for the Federal government to regulated the entire water cycle. You do not want the Federal government in control of everything. As an added note, you could go a long way to reduce global warming if you saved the trees the Federal government now consumes to feed its paper process.

David,

All this talk of regulating "every drop of rain" and "the entire water-cycle" is a distraction. There is simply no denying that the Corps' 404 regulatory program, as it is presently constituted (before and after SWANCC and Rapanos), is, to a large extent, a land-use regulatory program. And there is simply no evidence to indicate that the authors of the Clean Water Act of 1972 ever intended such a thing, nor that they believed they could or wanted to create such a thing. Yet it has indeed been created through a symbiosis among environmental activists, the federal courts, and activist bureaucrats. This is the essence of the on-going argument between the activists on your side of the debate and the legalists on mine.

A favorite radio talk-show host of mine likes to say that he prefers clarity to concensus. So let's be clear: I want our Constitutional system of limits and laws upheld even if that means that the environment suffers. And you would prefer to protect the environment at almost any cost and you are not as much concerned with preserving our republican (small "r"!!!!) system of Constitutional limits and laws.

One man’s clarity is another’s distraction I reckon; my scientific clarity versus your legal clarity – who is to play arbiter? I did say that I would be comfortable with the Legislature clarifying the meaning of “Waters of the U.S.” for the sake of burying this argument. I am not sure why you are not content, and I get the feeling we are covering old ground here.

Is someone denying that the government is regulating how land is used? Is there something wrong with the government regulating land use? And sorry, but your statement "there is simply no evidence to indicate that the authors of the Clean Water Act of 1972 ever intended such a thing" is at best overstated, and at worst wrong. The simplest way I can put it: you rely upon limiting the Legislature's mandate to their stated Federal Nexus of "navigable waters", as if the 404 regulatory program was intended to restrict dredge and fill activities only in relation to navigation. I find that exceedingly redundant given Section 10 of the 1888/1899 Rivers and Harbors Act already regulates that very activity in that very context.

The context of the FWPCA (later the CWA), where Section 404 resides, is water pollution control or clean water. It seems fairly clear to me the Legislature based their use of the term “navigable waters” on the 1824 Gibbons vs. Ogden case, which had clearly linked navigation to commerce. But that does not mean the Fed’s regulatory authority is limited to that nexus. That is why I brought up the full meaning of the word Commerce (for the drafters of the Constitution) and some of the impacts to Waters of the U.S. that I believe could be argued as constituting a significant impact upon Commerce and therefore create additional Federal Nexuses.

That should preserve the republic, both in body (water) and in spirit (law).

David,

Evidence? How about no mention of the word "land" or even "wetland" or "land use" in the entire CWA of 1972?

And yes, Section 404 of the CWA was intended to essentially provide an environmental overlay (with requirement for alternatives analysis) on Section 10 of the Rivers and Harbor Act. Good point. Redundant? How? It adds a whole new system of review of activities in the same waters. Not redundant.

Matt,

You cannot separate the two; water quality is intimately entwined with land quality, and air quality for that matter. You cannot restore and protect water quality without addressing land use. This is, however, academic so we need not belabor this fact.

And no, the CWA is not an environmental by-law for Section 10 of the RHA... it is its own animal. Let me refresh your memory:

U.S. Code>Title 33>Chaper 26-Water Pollution Prevention and Control>Subchapter I-Research and Related Programs>§ 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. "

David,

My memory is fine, thanks. It's your ability to comprehend the basic tenents of Congressional legislation that is in doubt. I didn't say that Section 404 of the CWA was an "environmental by-law" (whatever the hekk that is) to Section 10 of the R&HA. I said it provided an environmental overlay to regulating the same waters.

Does Section 404 of the CWA say anything about structures? No, it doesn't. Does Section 10 of the R&HA say anything about the the EPA Administrator developing guidelines for specifying or prohibiting dredge/fill disposal sites? No, it doesn't. They're different laws applied to the same waters. Not so hard to understand. Not redundant, either.

Read the law, not just the objectives and goals. The objectives and goals are not the implementing language.

The CWA doesn't mention land. Not once. Was that just an oversight? Geeesh!

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

Matt,

we have already stated that we are not lawyers so we don't have to belabor our "interpretation" of law. I am pretty sure the goal tells us what they intended the law to achieve, however.

If you want to split hairs I can offer that the Fed is not technically regulating land - they are regulating water that happens to be on, at, or near the surface of land. I guess you could say they are regulating "water use", which could be interpreted as regulating land use by those who don't appreciate the interaction between land and water.

Voila! It's not land, it's water!

Water use. Of course.

Not a lawyer, eh? Coulda fooled me. Only a lawyer can perform that kind of verbal sleight-of-hand.

In most precincts in America, they gotta name for folks what talk like that.....