This is from a recent article
"The attorneys general of 34 states plus the District of Columbia filed documents with the U.S. Supreme Court Friday in support of the Clean Water Act in three cases set to be heard next month. "

Does anyone know where I can get a list of which states/organizations have filed friend of the court briefs for this case? And/Or what side they support.

Dear Judy,

You will find links to all of the court briefs and amici briefs at the website below. This is the most important issue in wetlands today.

While there seems to be little interest on this forum, it is obvious there is much concern among numerous parties because a relatively large number of briefs that have been filed in this case. The Society of Wetland Scientists filed a brief but has not advertised this fact on its website.

I sometimes wonder if wetland scientists are embarassed to talk about jurisdictional issues.

http://www.eswr.com/1105/rapanos/

Thanks for the reply. I will check out the website ASAP.

I am not sure why there is not more information on this on the SWS website. Can we get a copy of the SWS brief?

SWS collaborated with others to prepare its brief. The brief is available at this site:


http://www.eswr.com/1105/rapanos/rapamicesa.pdf

Johnny Stevens,

You may be too young (on this forum, that is) to remember, but, in fact, today is exactly the fourth anniversary of the great SWS forum shutdown. On January 31, 2002, the SWS Wetlands Forum was a wide-open, free-ranging, free-for-all of politics, culture and federal wetlands jurisdiction. Man, the joint was jumpin'.

Some of the threads were veritable barroom brawls. There was no registration required and anyone could post anonymously. Some of the threads got a little rough and warnings were issued. But, God, it was on-fire and a ton of fun.

There was Kelly and SWANCC Thing and Jethro and Wetlands Consultant and Newbie and Ringo and Yoko Ono and a bunch of regulars. Response to inflammatory posts was instantaneous and the topics ranged from Supreme Court decisions to popular music. Then, suddenly, with no warning and no explanation, BOOM! - February 1 and the forum was off the air.

It eventually re-emerged in its current format. But in the beginning, although registration was required, pseudonyms and anonymity were accomodated. The old flames were re-kindled for awhile. But then, I guess, from the point-of-view of management, some of the wetland political arguments made by posters that weren't using their "real" names were becoming dangerously persuasive.

So, management intervened and made a new requirement for "traceable" e-mail addresses and "real" names. All of the fun folks went away (Remember Bastille Day - July 14, 2003). And now it's difficult to scare-up a good discussion on even the most obviously relevant wetlands jurisdictional issues.

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

Johnny Stevens said:

quote:

I sometimes wonder if wetland scientists are embarassed to talk about jurisdictional issues.

Jurisdictional issues have little to do with science. The current jurisdictional cases in the Supreme Court is all about how laws are worded and how one law might interact with a second law. This is outside the training (and interest) of most scientists.

Additionally, if the corps changes which wetlands are under their jurisdiction, it wouldn’t impact me since every state that I have worked in has state wetland regulations. There would be almost no immediate change in the way I deal with wetlands if the corps stopped regulating wetlands altogether.

Oh. I forgot. This is the "Andrew Geffert Decade": "How does this affect me, Andrew Geffert?"

Andrew Geffert said:

“Jurisdictional issues have little to do with science. The current jurisdictional cases in the Supreme Court is all about how laws are worded and how one law might interact with a second law. This is outside the training (and interest) of most scientists.”

Dear Andrew,

Thanks for your candid and insightful reply. Given that many scientists work in government and academia and focus on technical issues and scientific research, then it is understandable that wetlands science is viewed in a different context than wetlands law.

I disagree with your assertion that jurisdictional issues have little to do with science. There are extensive and detailed scientific arguments in the amicus briefs that have been filed with the Supreme Court in the Rapanos and Carabelle case.

Under the Corps’ latest guidance document for determining federal jurisdiction (Joint Memorandum 1/03), regulatory staff must consider relevant court decisions before asserting jurisdiction or taking enforcement action. Given the complications that this requirement introduces to the regulatory process, the determination of federal jurisdiction should not be left solely to the jurisprudence of a young staffer who may or may not be knowledgeable in wetlands law. While wetlands law may be the proper domain of attorneys, it is not unreasonable to expect a wetlands scientist to have at least a working
knowledge of the law. If a scientific expert can not grasp the law, then what role could they play in the affairs that matter to the regulated public?

Wetland scientists who serve the regulated community must necessarily interpret and apply the law. Often, wetland scientists defer to government agencies on this task, and do not invest the intellectual effort necessary to derive an objective and independent interpretation of law. Given the fact that wetland law undergoes frequent changes, it seems reasonable to expect a qualified expert to have a working knowledge of the law, sufficient to support any recommendations that are based on scientific analysis. For example, a wetlands scientist should be able to identify and document wetlands technical criteria, and determine if the same wetlands are subject to federal jurisdiction based on relevant court decisions, same as regulators.

If a scientist does not understand the law, then how would he or she assess the impact that changes in federal law may have on state wetland laws. Future wetland scientists need to understand the legal foundation that is interwoven with wetlands science. Accordingly, I offer the following assignment to serious students and aspiring wetland scientists:

1)Study and absorb the treasure trove of knowledge in the amicus briefs filed with the Supreme Court in Rapanos and Carabelle.
http://www.eswr.com/1105/rapanos/

2)Obtain and study the oral arguments scheduled for Feb 23, 06

3)Return to this forum and predict how the Supreme Court will rule before it issues a decision (around June 06).

Johnny,

The Supreme Court cases boil down to two arguments/claims:
A. The clean water act did not authorize the government to regulate wetlands (and other waters) so far away from navigable waters.
B. The Congress exceeded it authority if the law states that the federal government can regulate waters so far away from interstate waters (commerce?).

From what little I have heard and read, wetland supporters have made two basic points in support of federal wetland regulation:
1. Congress does have the authority and did mandate that those wetlands and water should be regulated, and
2. Wetlands are great and should be protected.

As a wetland scientist, I know that wetlands are good and should be protected. However, that doesn’t have much to do with whether or not the Corps can regulate the wetlands in question.

If the Clean Water Act exceeds congresses authority, or the corps can’t legally regulate those wetlands, then it doesn’t matter how many salamanders they support, or how the water eventually seeps into the St. Lawrence Sea Way. It doesn’t mater how wonderful the wetland is, or how devastating the consequences are if the wetland is destroyed, if the corps can’t legally regulate a wetland then they can’t regulate it.

As for your other point, I agree that a wetland delineator/consultant must know wetland laws well enough to make jurisdictional calls on their own and be able to challenge an incorrect call by a regulator. But no mater how much arm waving is going on right now in the Supreme Court, the laws are still there, Corps policy has not changed, and there will be no change in how we all must delineate jurisdictional wetlands until the Supreme Court makes a decision. Potentially, there will be no change even then.

The time for scientists to get involved is when policy is being decided within the EPA and Corps, and in states and local governments when new wetland laws are being crafted.

Andrew said:

"...the laws are still there, Corps policy has not changed, and there will be no change in how we all must delineate jurisdictional wetlands until the Supreme Court makes a decision..."


Dear Andrew;

A common question facing many land owners in those states that do not have wetland regulatory programs, is whether to wait until after the Supreme Court rules before applying for a federal wetlands permit.

If a land owner applies for a permit and the Supreme Court subsequently decides that a permit is no longer required, then the land owner may have a difficult time extricating a project from a regulatory process that requires coordination with multiple government agences.

I would like to hear how others are dealing with this issue. Is there a scientific justification for applying for a permit sooner rather than later?

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

Excellent point, Johnny.

Johnny,

Clinical studies have shown that consultants who reduce bureaucratic entanglements during project gestation deliver larger and healthier projects. So, there is a scientific justification for applying for permits later rather than sooner.

Thank you Mr. Stevens for posting those links. I've got a lot of reading to do.

I recall the early days of this forum that Mr. Reed mentions. Back then I used to regularly pull up the SWS Forum to read the posts. It was often a collegial battleground, but I never failed to gain some insight or new information regarding federal wetlands jurisdiction. Although I liked the scientific discussions, I could generally satsify any technical questions I might have by researching the Journal, or other reference materials. In other words, it was not the scientific discussions which brought me back day after day. For discussions of wetland policy matters, the SWS Forum was the only game in town.

I disagree with those who believe jurisdictional issues (i.e., policy issues) are unscientific and therefore not worthy of discussion on this forum. Policy is vitally important to the protection of wetlands, and the SWS has acknowledged this truth by submitting an amicus brief in the Rapanos case.

To answer Johnny Stevens' question as to why there is so little interest in jurisdictional policy questions at the forum, I suspect the simple answer lies in the scarcity of those questions. It may well be that a large number of wetland scientists and consultants are unaware that the Corps' definition of waters of the US will soon be under review (again) by the Supreme Court. If the Corps loses, there exists the possibility that the current status of wetlands protection could be changed significantly. As Mr. Geffert points out, half of the states would be hardly effected at all, however the states which have relied on the Corps 404 program to protect their wetlands will be faced with a choice: prepare for increased wetland losses or develop a state program. Congress will be faced with a similar predicament: Amend the CWA, or rely on the states to pick up the slack.

Mr. Stevens wonders if wetland scientists are embarrassed to talk about jurisdictional issues. Ms. Krieg wonders why the SWS does not post a copy of its amicus brief on their website. I believe these two observations are linked. To boil it down, the SWS may be a little embarrassed to admit that they have taken a policy position on the jurisdictional question before the Supreme Court. In the past, the SWS intimated that they were uncomfortable with policy issue discussions on the forum, but had a decided preference for scientific issues. Now, in the case of Rapanos, they have exercised their freedom of speech regarding a policy issue in a manner not provided you and I, the readers of this forum. I sincerely hope that SWS will take a lesson from this and encourage wetland scientists to use this forum to openly speak their minds on policy issues.

Hi all,

Just a reminder of past history. No one was ever discouraged from discussing policy on this forum. The only limits ever placed were those on decorum and a request...ok, a requirement...that we all identify ourselves with our real names. That's it. Hardly the onerous situation that some would have others believe.

My thought was that this Supreme Court Ruling (no matter what side you are on) could have a signigicant impact on wetlands, as well as other waters of the U.S. It should be givin some attention on the website. Not just in the forum. Links to press releases and other information would be nice. Dates of the ruling, etc.

Andy,
I agree that the change to requiring that we identify ourselves is not a problem. as my major advisor once said it is a problem that is more obvious than real.

Regarding the SWS brief it was filed in conjunction with other societies of ecological scientists. If you look at the last two issues of the SWS bulletin there is a controversy that has arisen regarding the apparent failure of the SWS leadership to inform the membership of the Society's participating in public expression of wetland policy statements. This is another example. I am dismayed and upset that we as members are neither consulted nor informed when such polcy statements are put forward. In the last issue of the bulletin, the current president of the SWS writes a lengthy editorial about the upcoming supreme court review (BRAVO, Barbara), but nowhere in the bulletin are we informed that the SWS is participating in the preparation of a Brief (BOO!). Are we going to have to nickname the SWS the "Secret Wetland Society." We, the SWS Membership deserve to be informed at the least, and to participate directly at the best. Bob Pierce's letter to the membership is right on even if it is not absolutely technically correct in every respect, and the reply from our leadership is limp at best. I am mad as **** and as a lifetime member I do not expect, nor will I permit, the leadership to pass over this issue.
And I do not think that that Richard Chinn our webmaster should be responsible for keeping us informed. This forum does have a place for SWS leadersip to post anouncements to the membership.

Well, well, well. It seems that Mr. Rodney has picked at a fragile scab. So, the SWS is taking secret policy positions while maintaining a veil of neutrality on its website? Is there a tax-exempt status or something at stake here? Is that what this is?

And Mr. Pierce,

You imply that the SWS's prohibition of anonymity on the forum is not a "real" problem, but merely one that is "obvious". To that I would say that the decline in activity, especially activity related to wetland policy, on the forum since the prohibition of anonymity is real and the reason for it is obvious. I suppose whether or not the decline is perceived as a problem depends on your policy position. And we are now learning that, apparently, or perhaps not so apparently, any position taken by the SWS on wetland policy is kept secret.

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

Hi all,

Nothing in the SWS is done in secret, though we are a representative democracy of sorts. Not everything is cleared through every member-that would be pretty much impossible. If you have any complaints or questions about what the Board is doing, you have the right...no, the duty...to get in touch with the Board and make your views heard. No one will ever stop you from doing so.

No, I do not suggest that the SWS is a secret society. It has characteristics of secrecy when public pronouncements are made without consulting or informing the membership. When the leadership participates in preparing an amicus brief to put before the Supreme Court that may or may not be OK, but when we are not informed that it will happen, or that it has happened nor are we provided a copy of the brief, we have a serious problem. We do have the SWS Announcements section of the forum, which could be configured to accept responses but only from members. It also is an inexpensive way of getting quick information to and discussion from the membership.

When we have the mechanism for communication, but our leadership does not use it, there is a big problem.

About the reduction in activity on the web site we can say anything that was allowed before, but we simply must identify ourselves. Personally I found that the former anonymous format promoted all sorts of wild, unsubstantial, and irrelevant communication. I guess if you want that go at it but simply use your name.

Mr. Pierce,

I am loathe to engage this tired old argument against what I must conclude is invincible ignorance. But I just cannot help myself:

1. Please cite examples of "wild, unsubstantial, irrelevant communication" posted on this forum in its current format before anonymity was ended.

2. Yes, it's true that "we can say anything that was allowed before" (that we could say anonymously). But, there has been an undeniable decline in policy related activity on the forum that corresponds directly in time with the ending of anonymity for posters. Since we can say anything we could say before, it would seem that there must be something about the ability to post anonymously that was of paramount importance to many policy posters. I ask the forum to let their collective imaginations run wild and see if we can come up with some reasons as to why that might be.

3. How do you feel about the Patriot Act?

I'll just hang-up and listen to your response.

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