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Jeff said:
"...it is the bureaucrats who run the day to day operations of the executive branch, and if the bureacrats decide that it is better to delay a policy change until the courts have picked over the issue, then that is how it will proceed..." Dear Jeff, I spoke to a bureaucrat in Washington, and they told me that the guidance has been approved by the Corps, EPA, and Dept of Justice, and it is currently in the hands of the Council on Environmentl Quality, which manages environmental policy issues for the Executive Branch, and is awaiting the approval of the President. I was told that the President has a personal interest in wetlands. The bureaucrats may be holding things up but there are other legal and political reasons that the guidance has not been issued. You may be right about the Executive Branch defering to the courts. The courts have been making wetlands policy for years. This is why I believe that the rules will vary in each federal circuit. |
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Pacific Legal Foundation
Post-Rapanos Cert Sought This past Wednesday, November 22, PLF attorneys filed a petition for cert with the U.S. Supreme Court in Morrison v. United States. The case involves another extravagant assertion of jurisdiction by the Army Corps of Engineers. But what’s worse, the Sixth Circuit (that’s right—the same Circuit that was reversed in Rapanos) completely ignored the Supreme Court’s decision in Rapanos when affirming Corps jurisdiction over the Morrisons’ property. Alice and Joseph Morrison own a small parcel of land on the edge of a residential subdivision on Harsens Island, Michigan. Their property is about a quarter mile from the nearest navigable water, the St. Clair River. Ten years ago the Morrisons had to dig up a broken sewer pipe for repair. The Corps later claimed that the Morrisons violated the CWA by illegally discharging pollutants (translated "dirt") into the navigable waters of the United States (translated "their backyard"). The Morrisons then spent the next decade litigating on their own and defending their property and finances against the feds’ attempt to impose a $25,000 civil fine. Link to the rest of the story: http://rapanos.typepad.com/my_weblog/ |
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".....and the beat goes on."
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I'll give y'all some dots:
What does the CWA say? Read it for yourself: The Clean Water Act TITLE 33 > CHAPTER 26 > SUBCHAPTER I > § 1251 Congressional declaration of goals and policy Title 33 addresses: NAVIGATION AND NAVIGABLE WATERS (I'll get back to this) Chapter 26 addresses: WATER POLLUTION PREVENTION AND CONTROL (aka the Clean Water Act) Now lets cut to the chase ok? Reading you guys beat about the bush (no pun intended unfortunately) interpreting Supreme Court rulings is getting a bit tiresome. Sorry, I don’t mean to be harsh to everyone who is participating, and I have my own agenda here: progress. Anyways, it's as if y'all never learned just how bad the nation's waters were in the early 60s, spuring the Legislature to create the CWA: rivers catching on fire, contact recreation banned, and you can forget eating fish from an American river! Now where was I... ah yes, let's read the CWA:
BOOM. Gets your attention eh? I think that was their point. Makes me wonder WTF the Supreme Court is playing at - stinks like politics and not interpretation of the law, which they are sworn to. But, before we string 'em up, let's get back to the all-to-popular "navigable waters" bit OK? Navigable, not navigable... who cares? The US Constitution does, and specifically the part referred to as the "Interstate Commerce Clause". Again, let's read it shall we: United States Constitution Article I Section 8.
I believe this is IT. I am no Constitutional Lawyer, but that is the basis for all Federal Jurisdiction in these cases. If it influences interstate commerce it falls under the regulatory authority of the Fed. At the time the CWA was drafted, the quality of the nation's waters must have had a noticeable impact upon interstate commerce (burning rivers are an impediment to navigation  ), along with the incomplete list of things mentioned above. Now here is where I must take exception with this whole process, but rather than jump up on my lil' soapbox and scream about most people overlooking the importance of clean water to EVERYTHING, let me just give you one more taste of the CWA: TITLE 33 > CHAPTER 26 > SUBCHAPTER I > § 1252 Comprehensive programs for water pollution control
Did you see that! I put it in bold: groundwater! Obviously the 60s Legislature did not forget that groundwater can be an interstate water, and it certainly has an impact like surface waters upon all commerce, including the interstate variety that the Fed has regulatory authority over. And nobody is going to argue that it is navigable. Please read more! Now if we can only get past this song and dance phase, and get right to exchanging blows (shall we El Reed?  ), we can figure out who is putting clean water first, and who puts it second behind, sigh, greed. We can start by discussing The Hydrologic Cycle and the very real physical connections among the various parts of the cycle (dare I call them nexi?) in the ground, on the surface of the earth, and in the air. And we can continue to educate Scalia on the existence of the Troposphere! By the way, if you want a very good review of SWANCC issues, and some food for thought brought to you by agency council and recognized experts in the field, see the issue of Wetlands dedicated to it - Vol. 23, No. 3 - September 2003 found here: http://www.sws.org/wetlands/toc/TOCV23n3.html I was fortunate enough to be in New Orleans for the SWS conference containing the special session that led to the special issue linked above. Council (i.e. lawyers) for the EPA and the Corps hosted the session, and they were very comfortable discussing the sole implication of SWANCC: the Fed cannot use migratory bird presence as the sole nexus to interstate commerce. As the great Porky used to say every Saturday: “That's all folks!” even though some folks would like you to believe there are other implications to SWANCC… I bet there are similar factions at work on the current ruckus, and perhaps right here in this forum. I hope SWS and Wetlands will cover Rapanos/Carabell soon, for all our sakes. And I hope that the Legislature can update the language of the CWA, as instructed to by the Supreme Court in the SWANCC decision, thus eliminating this stupid legal tryst from happening again. PS - if you can't get the Cornell links to work (because they are slummin' for donations which interrupts the hyperlinking) just search on Google for "CWA" and then "Commerce Clause" and you will get these hits on the first pages. This message has been edited. Last edited by: David Thomson, |
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Dear David:
Thank you for you comments and fresh perspective. Many of us babyboomers remember the 60’s and how polluted our water, air, and environment used to be. Fortunately, America did more to protect the environment than any nation in history. After more than forty years of effort, today our environment is in much better condition and we are grateful. Unlike other parts of the Clean Water Act which regulate the discharge of traditional pollutants, the purpose of Section 404 is to regulate the discharge of fill material (dirt) which in a separate regulatory category than toxic pollutants such as benzene, arsenic, sewage, formaldehyde, polonium, etc, (which actually do threaten public health and the chemical, physical, and biological integrity of our Nation’s waters). The purpose of Section 404 is to regulate wetlands, not the discharge of toxic pollutants, which is regulated elsewhere. This lack of distinction between dirt and toxic pollutants is a common mistake that is easy to make when one is not fully knowledgeable of all the details and definitions in the voluminous Clean Water Act and other federal environmental laws. [...Carbon dioxide is another natural compound that is often confused with a toxic air pollutant...] Your observation about the Constitutional basis for regulating wetlands is correct when applied to activities that effect interstate and foreign commerce. However, the present wetland Constitutional conflict focuses on in-state waters that are traditionally regulated by state and local governments. Another Constitutional conflict is the Fifth Amendment requirement that the government compensate land owners when it takes private property for public use. Many land owners consider wetland laws to be an unauthorized “taking” of private property for public benefit. In the past, the Corps has regulated groundwater as a “hydrology connection” for the purpose of expanding its jurisdictional reach beyond the legal limits authorized by Congress in the Clean Water Act. Some federal courts have upheld groundwater, but the US Supreme Court has soundly rejected groundwater as a basis for establishing Clean Water Act jurisdiction. The Corps and EPA have argued that SWANCC only removed jurisdiction from isolated wetlands. This argument is demonstrably false when one reads the plain language of the SWANCC decision, which clearly restricted federal jurisdiction over all isolated intrastate waters (not just isolated wetlands). If SWANCC solely affected isolated wetlands and not other waters, then the Supreme Court would not have heard the Rapanos case. I share your disappointment with SWS and “Wetlands” journal regarding its coverage of Rapanos. Those of us who have been on this forum for awhile are well aware of the general reluctance of wetland scientists to deal with jurisdictional issues. Presently, the Corps is telling the regulated public that Rapanos has little or no impact. The Corps is attempting to maintain its “pre-Rapanos” jurisdictional limits. Most wetland scientists are sympathetic to the Corps’ broad “pre-Repanos” jurisdiction. This debate is driving the painful and slow realization that Rapanos actually did significantly restrict federal Clean Water Act jurisdiction. Astute wetland legal scholars (and maybe a few scientists) understand the reality of this situation. This message has been edited. Last edited by: Johnny Stevens, |
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Lord, I'm so tired.
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Hi all,
Let's be fairly clear here. Wetlands is a professional journal dedicated to wetland research. It is probably not an appropriate outlet for policy discussions such as might be related to Rapanos. I offer the SWS Bulletin for anyone who wants to write such articles. The Bulletin is a much better outlet for such discussions. I have in the past welcomed viewpoints from this Forum and I will continue to do so. Please contact me directly if you want to write an article. Thanks. Andy Charles Andrew Cole, Ph.D., PWS Ctr for Watershed Stewardship Penn State University 227 East Calder Way State College, PA 16801 814-865-5735 (-1378 fax) cac13@psu.edu |
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Yes, our environment is much better, but it is still a work in progress: it is not great. There are plenty of examples of significant water quality issues, such as the dead zones at the mouths of several US Rivers, or the thousands of wells fouled by nutrient pollution (aka fertilizer). The CWA was scheduled to be fully implemented by 1985, and agriculture has barely been touched (certainly not like industry), in part because they cannot absorb the costs without becoming even less competitive with foreign agriculture. Much of the spirit of the CWA is being implemented via the Farm Bill, and the voluntary conservation programs of the USDA. US water quality is a work in progress, that every American must contribute to if we are to reach the necessary goals of the CWA. I believe Federal agencies have been quite sensitive to the genuine needs of certain sectors, but when a developer nukes wetlands without regard the gloves rightfully come off.
Sorry, but I will have to take exception to what you have posted there. Sediment actually impairs water quality, and therefore is an aquatic pollutant. I know of no one else who would argue against this point... let's check the American Heritage Science Dictionary:
Your post also neglects to address the water quality benefits afforded by wetlands. If someone wants to argue this point, which I doubt anyone would, first start by addressing the phenomenon of treatment wetlands please. Filling wetlands eliminates their water quality functions. In addition to those oversights, filling wetlands also eliminates their flood flow mitigation benefit; have you seen the hydrograph of the Mississippi River pre/post-main stem levees? And one last point from me, although it is not a definitive list, filling wetlands can also have significant effects upon groundwater recharge, by making systems more flashy water moves elsewhere before it has the opportunity to infiltrate. PS – at certain concentrations carbon dioxide becomes a pollutant. Oxygen can be a pollutant as well: I recall hearing once that if the global concentration of oxygen in the atmosphere were to rise 2% it would become flammable; if it were to drop 2% we would suffocate. Sounds harmful eh? Even clean water can be a health hazard in the wrong quantities! Have you heard that marathoners have drank too much water and upset their electrolyte balance, causing heart attacks… again, note the definition above states “harmful concentrations” as its threshold.
Let me stress my main point further: water quality influences EVERYTHING. You don't need rivers on fire for water quality to have a significant impact upon commerce, interstate or otherwise. How about the impact of no clean water for drinking? Take some cues from the Clean Air Act, which had the highest benefit to cost ratio of any Fed program analyzed by the GAO, before Bush gutted it; clean air helps workers stay healthy and that means less sick time, etc. I can imagine the CWA would have a good ratio as well. If local governments and states had taken the initiative to protect water quality then the Fed would not have had to take control. That is the benefit of having a strong (yet benevolent) Federal government; when locals will not, or cannot, take care of The Greater Good the Fed is there to take up the slack. And I wouldn’t characterize the CWA as “taking” property, authorized or otherwise. An individual landowner is – and should be - liable for actions that have significant effects outside the bounds of their property. If you have a river crossing your property and you take its floodplain, thus exacerbating flooding downstream, I guarantee you will be hearing from your downstream neighbors lawyers. Why should water quality be any different?
I did not know the Corps had used groundwater as a hydrologic connection, which it is. But again, I will have to take exception with your interpretation of the CWA. Even if you have not read the act, you could have at least addressed my quotes above. The Legislature explicitly stated groundwater in the act. I believe problems arise when folks try to interpret the CWA, or purposefully misinterpret it. The Supreme Court’s job is interpreting law, however it is written by the Legislature, or reprimand them for not upholding the Constitution by striking down their laws.
Chief Counsel for the EPA and a lead counsel for the Corps would disagree with your interpretation of SWANCC as well as your recollection of their arguments. They said so in person and in writing; please get a copy of that issue of Wetlands! To recap: migratory bird use cannot be the sole Federal nexus for claiming jurisdiction. If you want to read between the lines of the SWANCC decision, the Supreme Court was directing the Legislature to update the language of the CWA in order to deal with this issue.
I would not characterize my statements as disappointment with SWS or their journal. I was just encouraging them to address this new round of tom-foolery as well as they addressed SWANCC. It will take time for them to arrange an all-star cast like they did with SWANCC. Wetland scientists do not necessarily have the time to devote to regulatory issues. I have devoted a great deal of time to it because I was working with these issues and there is too much disinformation out there to trust whatever people say, even those who you trust because they might have been misinformed. Therefore, and based upon your interpretation of SWANCC, I will wait for the EPA/Corps interpretations of Rapanos/Carabell. I hope SWS can organize another panel of experts too, because the Federal scientists and regulators have been overly-politicized over the last 6 years. |
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Andy, I was thinking of something along the lines of Wetlands Vol. 23, No. 3 (September 2003). The meeting session in New Orleans that spawned that special issue was a great help to me. |
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OK, let's try a different tact: I'm an idealist Matt, so it would help me to understand you if you told me your ideals. Sincerely, David |
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Mr. Thomson,
Ideally, I believe in promoting an American society governed as a democratic republic by the Rule of Law as informed by the Anglo-Saxon traditions brought to these shores by the Founding Fathers. With regard to the Constitution and the law, I believe Original Intent and plain English should be our guides. My comment that "I'm tired" refers to the fact that you are a newbie. That's not your fault. But, we have covered all of the legal arguments pertaining to Section 404 of the Clean Water Act, previously, ad infinitum. Unfortunately, the SWS has not preserved the posts of SWANCC Thing and Jethro and the boys. If they had, I would direct you to them for your schooling. As it is, I leave that to others. What are your ideals? This message has been edited. Last edited by: Matt Reed, |
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David,
Nobody enjoys a good debate more than I. So, there's no need to apologize for taking the gloves off. (Though, all this talk of "capital" and "the greater good" IS making me a bit uneasy.) Unfortunately, I'm going to be out-of-pocket for an extended celebration of the Feast of the Nativity. So, you'll have to carry-on without me for awhile. Suffice it to say, in short, that despite, perhaps because of, what all the legal counsels at EPA, USACE, the CIA, the FBI and the Mod Squad say about Rapanos, I fear that there is an ever-dwindling number of people in Washington that are even capable of understanding the simple concept that the term "waters" in the Clean Water Act has a relatively plain and simple meaning with generally easily identifiable limits on the landscape. Those mostly obvious limits are inherent in the word itself and must be recognized, first, BEFORE evaluating the effect of any discharge on our "natural capital" and "the greater good". (See Opinion of Scalia, J., RAPANOS ET UX., ET AL. v. UNITED STATES). That's all for now. Merry Christmas! This message has been edited. Last edited by: Matt Reed, |
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Why would the greater good make you uneasy? Unless, nah… Perhaps you would be more comfortable if I were to make the ideal more extreme, with “the greatest good” of Theodore Roosevelt:
I cannot do better than he, and I note he does appear to have studied North American native proverbs.
Ah, so you do not respect opinions from the legal counsel of the agencies. Your stance also appears to carry a significant portion of disdain for them (we must be cognizant of what we bring to the table). Are they not to be trusted as a matter of course? The only point that you offer to support your summary dismissal of their conclusions is your belief:
WATERS. Yes, it is a simple word. And fortunately the Legislature provided us with a very simple and clear “Congressional declaration of goals and policy” in TITLE 33 > CHAPTER 26 > SUBCHAPTER I > § 1251:
- which I quoted in my original post. I am beginning to feel like a dog chasin’ his own tail… but let’s read on shall we?
Crystal Clear in my opinion, but I am not feeling humble at this point. Please note that we are over 20 years behind schedule. Anyways, the waters are muddied by the question of Federal jurisdiction, not an interpretation of the word “waters”. “Waters of the US” vs. “Waters of the State” is the gray area utilized by, what did Teddy call them… ah yes, short-sighted men in their attempts to circumvent the CWA. Thus the ongoing ridiculous discussion of “navigable waters”, and the Supreme Courts direction in SWANCC to fix that outdated terminology and end this song n’ dance – which I also stated in my original post. I’m getting tired Matt. By the way, it does not serve you to quote Scalia’s opinion on these matters, since he has proved himself to be inadequate at understanding the physical basis for the laws that he is trying to interpret, which I also mentioned in my original post. Merry Christmas to you too, David |
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David,
I've delayed my Holiday departure just to respond to your post. One of the things that drives me most nuts in these debates is the continual citing of the stated objectives of the Clean Water Act to justify the virtually limitless regulatory reach of Section 404 that has evolved over the 30-some years of its existence. At least you cite the goals set to achieve the objectives. Nonetheless, I offer this analogy to illustrate the silliness of that argument: Let's say that a person given to many vices wakes-up one day and decides to change the way he is living. And to that end he vows to stop drinking, quit smoking, eat healthier foods, be nice to his mother, and watch his language. Now, together, all of those changes may indeed lead to a noticable change in his life. Each one speaks to a different aspect of his life. But no one would suggest that his objective will be achieved with only one of those changes, alone. So, let's stop placing the burden of achieving the objectives of the entire CWA on lil' ol' Section 404. There are lots of other sections that carry alot more water (pardon the pun) than 404. 404 appears almost as an afterthought, but yet with the very deliberate purpose of separating-out the permitting, yes, the permitting (see Section 404 title), not the eliminating (as stated in the goal you cite), of a very specific class of discharge commonly practiced in the maintenance of navigation channels by the very Army Corps of Engineers charged with Section 404 administration. (Gee, why do you think Congress made that unique provision? You think they wanted the Department of Defense involved in a de facto land use regulatory program? I DON'T THINK SO!!) The discharge of dredged and fill material is addressed separately so as to provide for its continued PERMITTING, not as a pollutant which the CWA Act seeks to eliminate over time, but as a regulated displacement of "waters". Lord knows, I could go on, but I must get on the road. This message has been edited. Last edited by: Matt Reed, |
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Matt, Thanks for taking the time (and I look forward to your responses to my enquiries regarding your statements on agency legal counsel). But those are the stated goals of the act. You know, I get the impression that you are less preoccupied with the goals of the CWA than you are with the “virtually limitless regulatory reach of (fill in the blank with the Federal regulatory program of your choice)”. Are you Libertarian? That is fine, because y’all have a role in offsetting those on the other extreme who dream of Big Brother. Just don’t forget the majority of Americans are firmly entrenched in the middle, and they appreciate the Fed when it picks up the slack from State neglect, which is exactly what happened in the time leading up to the sixties when the Fed enacted the WPCA. Speaking of the history, I think it would be of use to you in your interpretation of the current act to review their timeline: http://www.usace.army.mil/cw/cecwo//reg/reghist.pdf In particular, note the events leading up to 1977, when the FWPCA became the CWA; might want to dig into those events a bit deeper. And a bit of a discussion for you here: http://library.wrds.uwyo.edu/wrp/86-05/abs-86-05o.html . But before we go down that track too far I want to point out that I agree with you on one point: Section 404 of the CWA is only one rather small part of the CWA, particularly in comparison to Section 402: NPDES. Section 401 (state water quality certification) is probably more equivalent to Section 404. I think I also pointed out that it appears some of the CWA is being implemented via the Farm Bill through voluntary USDA programs. I am sure there are others, but it is time for the holidays!
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David said:
“...A very wise man once said that we do not inherit the earth from our ancestors (including the founding fathers), we borrow it from our children. That is an excellent place for us to start with my idealism in the scope of this discussion...” Dear David, I am a real estate developer and over the years I have worked on many large residential subdivision projects. I share your idealism and love for nature. I have the good fortune of working outdoors on large tracts of undeveloped land with natural habitats and wetlands. Though we seldom get credit for our efforts, land developers play a major role in protecting both wetlands and uplands. We choose our land purchases and plan our projects to avoid impacting high quality sensitive habitats. We design around wetlands, natural streams, and ponds to minimize and avoid impacts to the extent practicable. At the earliest stages of a project, we conduct environmental studies and begin the complex and lengthy regulatory process. We spend large sums to prepare delineations, permit applications, and mitigation. I view land as both a natural and human habitat. Our challenge is to find land that has only a minor impact on the natural environment. Often the least impact is agricultural land that was long ago converted from natural habitat, or old abandoned developed land that can be redeveloped. In this way we avoid and minimize impacts to sensitive habitats. I am proud of our contribution to conserving and protecting our natural environment. Today there are thousands of acres of natural uplands and wetlands that are set aside and protected as mitigation, preservation, public parks, refuges, and conservation easements, which are funded by the real estate development industry. Environmental laws are constantly expanding and changing and this presents an enormous challenge for not only real estate developers but for ordinary citizens. For example, in southern States we build new homes for first time buyers that sell for approximately $120,000. The same home in California would cost over $500,000 because of the excessive regulatory burden, which disenfranchises first time buyers. It is only reasonable that we are comforted when an occasional court decision, such as Rapanos, is favorable to human habitat. Most of us are idealist when it comes to nature. In an ideal world we must protect our natural heritage and provide affordable housing for future generations. Merry Christmas to all my friends and colleagues on this Forum, and to the Society of Wetlands Scientists who make it possible. This message has been edited. Last edited by: Johnny Stevens, |
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