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David, David, David,
I have no argument with the goals of the CWA. Nor, if I may be so presumptuous as to say, does Justice Scalia. The goals of the CWA are not in question, here. Nor were they in question in SWANCC or Rapanos. What is in question is the geographic limits of those "waters" for which we seek chemical, physical and biological integrity. Justice Scalia is in need of no more edification in his knowledge of the hydrologic cycle or the troposphere than he is in the pork bellies futures market in order to render a credible and educated opinion in the translation of a plain and simple term of common parlance like "waters", in a legal and regulatory context, in an act of Congress, to the geographic landscape. Please tell us what consistent and predictable geographic limits on those "waters" and the basis, therefor, you believe should be recognized by the regulatory agencies charged with the administration of the CWA. |
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Well, truth be told, if anyone had an argument against the goals of the CWA we would probably write them off as a nut. Since you will not be so easily pigeonholed we are forced to continue this discussion, I am happy to see. And I hope you are right about Scalia, and he has the best interests of the American people at heart. But I will have to disagree with you in regards to his need of edification, since their discussions on carbon dioxide regulation gave me the impression that he was trying to understand atmospheric dynamics in both physical and chemical contexts. He may not have to walk a mile in an atmospheric scientist’s shoes but he will certainly have to understand the role that carbon dioxide plays in atmospheric pollution in order to render a judgment on the EPA’s decision to not regulate it. Perhaps that is neither here nor there, and we should move on eh?
I would state that the hydrologic system (aka “waters”) has no geographic limits, and I could probably get 98% of all hydrologists to back me up on that assertion. Furthermore I believe it must be treated without boundaries if we are to rehabilitate and protect it due to the interconnectedness of the system, and I could probably get a similar percentage of water quality experts to agree (to some degree) with that belief. I would guess that the idea of “geographic limits” is an artifact of the Interstate Commerce Clause. I note that you did not want to discuss interpretations of it but I now believe that we must. |
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Didn’t Johnny Stevens make a joke a couple years ago about how humidity in the air could be interpreted as a hydrologic connection? Apparently he was wrong, humidity is "waters of the US"...
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Ah, David,
With all due respect, the "Interstate Commerce Clause" is none of our business. That's the business of Congress. It does not enter into the realm of this discussion except so far as to say it has no bearing on it. Congress asserted its authority under that clause in order to write a law that regulates "navigable waters" as channels of interstate commerce (Rivers and Harbor Act of 1899). That's about all we need to know about the Interstate Commerce Clause, here. Those channels, by the way, have very specific and identifiable limits. The boundary of those traditional "navigable" waters was necessarily expanded, but not without limit, for the purposes of the CWA. We endeavor, here, to identify a reasonable, consistent and predictable geographic limit to that boundary based on common understandings and intended meanings of plain English words and terms. If you intend to continue this discussion on the basis of the assertion that the "hydrologic system" and the CWA's "waters" are synonymous, and further assert that such should have no limits in administering the CWA on the basis of "scientific" considerations, well then, all I can say is, "check, please"! Been there, done that, got the tee-shirt. This message has been edited. Last edited by: Matt Reed, |
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David,
Perhaps we have different views on the roll of government regulators. Many of us in the regulated community view the government as a necessary evil. A body that we must convince that what we are proposing does follow the law. And after spending large sums of money coming up with good plans that follow the letter of the law, sometimes the regulators still don’t allow the project because of personal preference or ideology. This frustrates us because I (we) believe their job is to ensure compliance with the law – the actual law, not what they would like the law to be. It seems to me that you fall (can be “pigeonholed”) into the camp that see the government regulators as a benevolent force to protect us from ourselves. If the regulators want to go beyond what the law says and expand their power, that is OK, because it is for our own good. We don’t want rivers catching on fire again. The problem with this attitude is that the hired regulators then make up the laws as they go, not the elected law makers. The regulators are not accountable to the people. Thankfully we have a system that allows us to challenge regulators when they do not follow the law, which is what happened in SWANCC and Raponos. It is up to law makers who represent the voters to determine how we should be protected from ourselves. Unfortunately, congress wrote a crapy CWA that does not clearly define “the Waters of the US”. Instead of clarifying the law, congress is letting the courts hash it out. As for the goal of the CWA, it doesn’t matter what the goals are if there is no mechanism in the law to accomplish those goal. According to the Supreme Court in SWANCC, the Waters of the US clearly have limits. There are many wetlands and lakes that are not under 404 jurisdiction. |
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Perhaps you would be more comfortable if I were to say: humidity comes from and can return to Waters of the US. But this is absurd; are you trying to address surface water quality as if it were a disjunct entity? Humidity can (and does) carry pollutants into the atmosphere and/or return them to land and/or Waters of the US. I was not particularly concerned with this portion of the cycle because the Clean Air Act did appear to be adequately addressing it. (Hopefully the courts can reverse the damage done to the CAA by the current administration.) Here is a link to the Clean Air Act; and speaking of difficult regulatory concepts please note the well-accepted use of airsheds. More later... |
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David,
You're doing this on purpose, aren't you? You're making deliberately obtuse and inflammatory assertions just to fire me up. OK, if you insist on making this a "scientific" discussion, let's establish the fundamentals: There's land, there's water and there's air; solid, liquid and gas. Separate...distinct.... and different. |
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Yes, but only because I think that you might not have ulterior motives.  If we ignore the interactions to start with (e.g. water vapor or infiltration) then correct: in the Ancient Greek sense there is Earth, Wind, and Fire - I mean Water. Correct. (My reply to you and Andrew's earlier posts is below) FYI: the Constitution of the United States is the business of every American. And that point is not open for discussion. Matt, I find it strange that you are able to conclude “navigable waters” is an artifact of the ICC, as is each Federal nexus in these cases (e.g. “migratory birds” in SWANCC), and then proceed to state that the ICC is not relevant to the discussion at hand. Can you clarify this seeming inconsistency? Let me make an observation: you (and everyone else who takes issue with the CWA) do not take issue with the stated goals of the CWA. How could anyone put clean water second and still be taken seriously? Instead you claim to take issue with the extent of Federal jurisdiction, and leave us to assume you have concerns about Federalism or excessive use of the ICC, which you oddly do not think is relevant... I must be mistaken with my interpretation of your posts! So instead, let me try to be productive and circumvent the ICC, which I was going to suggest anyways - since I believe we must if we are to adequately restore and maintain our water quality. Besides, I now see that you are prepared to talk shop, so: do you take issue with our current scientific understanding of the hydrologic system? And let me cut to my chase: we cannot treat one “part” of the hydrologic system (not that navigable waterways are a distinct part) if we are to clean it up and manage water quality adequately. You cannot merely worry about water quality within navigable waterways when that water is part of a cycle and pollutants enter and leave the cycle at other points, as well as move throughout it. Not to mention the fact that many parts play vital roles in water quality and supply! That is why I find any discussion of limits absurd. Besides, all this talk by the Supremes of what the Leg did or did not intend… the Legislature intended for the water quality acts to reach their stated goals, and the continual growth of the act through amendment shows this to be a reasonable conclusion. See: http://www.epa.gov/history/topics/fwpca/05.htm =============================================== Andrew, I get the idea that I am sitting in a room full of developers… (laughing). Disclosure: I was a consultant that helped the “regulated community” navigate the regulatory process, so I am well aware of your concerns and I have some idea about your viewpoints. I would fall into the pigeonhole that believes the current ruckus regarding the CWA is a ruse – a legal game – enacted by people who feel the CWA limits their ability to do whatever they want. This must be a classic case of “NIMBY”: everyone wants clean water but there are a few folks (I am guessing a rather vocal minority) who are not willing to make the sacrifices needed in order to restore and then protect it. 40% of our nation’s waters remain impaired, so I bet some painful sacrifices are necessary in order to reach that goal. The hard part is, as we run out of room for our ever-growing population when will our resolve dwindle away? This message has been edited. Last edited by: David Thomson, |
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David,
A fruitful discussion must be focused. This thread and any manageable discussion, here, needs to be focused on Section 404 of the CWA. For my part, I see no benefit in hashing-out ICC philosophies and re-writing the CWA. For our purposes, those issues are settled. The Army Corps of Engineers has been promising some new rules in implementing the Rapanos decision. That pertains to a very specific aspect of a very specific section of the CWA -the jurisdictional reach of the Army Corps of Engineers in its administration of Section 404 of the CWA. And there, we can fruitfully engage in some discerning of meaning and intent. The words of Section 404 are clear. And the intent of Congress is mostly obvious to anyone willing to read the words in the context in which they were written and composed. At this point in time, however, there have been 30+ years of twisted meanings and stretched definitions imputed into the original words to such an extent that it has become almost impossible to communicate on the topic. Justice Scalia and the justices that joined his opinion in Rapanos have attempted the Herculean task of lifting the layers upon layers of double-speak and obfuscation that have been laid on the rather simple and obvious words of Section 404 by the environmental bureaucracy and activist judiciary bit by bit for those 30+ years. My position in these matters cannot be stated more clearly or thoroughly than what Justice Scalia has written in the Rapanos decision. By your reckoning, it would appear that one is left to conclude that the entire text of the CWA is wasted ink. All the Congress really needed to do was state its goals and then let the agencies loose to achieve them in whatever way they see fit! "Limits? Limits? We don't need no stinkin' limits!" This message has been edited. Last edited by: Matt Reed, |
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Matt said:
"...The Army Corps of Engineers has been promising some new rules in implementing the Rapanos decision..." Dear Matt, It has been over six months since the Rapanos decision and it is becoming increasingly clear that the Corps (and EPA) are having a serious problem promulgating their “guidance.” With all due respect to David, it appears that the “experts” at Headquarters are unable to understand and apply the Clean Water Act in a manner that reflects a carefully reasoned analysis of the law. This failure to issue guidance underscores the fact that we are experiencing a true legal correction which advances our Nation and bolsters the rule of law. The conundrum facing Corps and EPA is not complexity, but the simplicity of Rapanos and its profound implications for the common man. The law is not abstract rambling, idealistic notions, bureaucratic trends, opinions, and politics. In America, our law is the constitution, legislation, and court rulings. For this reason, we now know that the Clean Water Act does not reach as far as heretofore believed (and practiced) and we should be grateful for the integrity of our judicial system regardless of our feelings about any specific outcome. Life is short and I hope to make the best use of the few good years I have remaining. To this end, my hope is to leave behind a legacy of homes and neighborhoods where young families nurture children in places that are safe, comfortable, peaceful, and enriching. We must not ignore the fact that most children will not have the privilege of growing up in such communities. The poor will always be with us and unfortunately it seems that bad places propagate faster than good places. In some ways the Clean Water Act contributed to this problem but its good results far outweigh its shortcomings. Before Rapanos, opportunities for good neighborhoods were increasingly limited but now there is hope for a better life for a larger segment of future generations. Truly this is a Happy New Year. May God Bless America and grant us many years |
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I can make this simple for you Matt: Section 404 of the CWA would indeed be wasted ink if we were to view the section with your eyes, because the act of filling navigable waterways - i.e. impediments to navigation - is already regulated under the Rivers and Harbors Act of 1899! Section 404 was written in the Clean Water Act with the understanding that filling waters alters their functions and values: in restoring and maintaining the chemical, physical, and biological integrity of the Nation’s waters. The use of the term “navigable” is only explainable by the ICC because that is how the Fed claims jurisdictional authority in such matters. The growth of the reach of Section 404 over the years since the original section was enacted shows how Congress improved their understanding of the impacts of fill, for example in wetlands (be they adjacent or otherwise). These improvements were facilitated by whom you inappropriately call “the environmental bureaucracy and activist judiciary”, which leads me to conclude that you do indeed have ulterior motives. Tisk, tisk; shame on you. By the way, you missed another question, so I will reiterate in the context of your last post: Our current scientific understanding of the hydrologic system indicates that waters have no limits. In the case of Federal regulatory authority the limits are imposed by the Constitution, and specifically the ICC. What underlines the fact that the “song and dance” in SWANCC and Rapanos/Carabell must truly be absurd is the fact that it was not the States seeking to curtail the reach of the Fed, because they are the only legitimate plaintiff in cases of ICC interpretation. Think about it: if the Fed was indeed overreaching, the States would be in the docket pleading their case before the court. But they were not there were they… |
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Johnny, you forgot to answer why you said that the high cost of housing in California is due to environmental regulation. Could you revisit that statement for us please? That would help us address much of this post in a productive manner. |
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David,
A while back in this thread, you took exception with my dismissal of the opinions of the Corps and EPA legal counsels in their interpretations of SWANCC and Rapanos, and you seem to have inferred from my characterizations of the "environmental bureaucracy" and "activist judiciary" that I have some "ulterior motives". In 1974, the Corps promulgated CWA regulations pursuant to Section 404 which were limited in jurisdictional reach to the "navigable waters of the United States" as that term had been traditionally understood since 1899, i.e., the Section 10 reach of the Rivers and Harbor Act of that same year. I'm guessing that the chief counsels at both the Corps and the EPA signed-off on those regulations in 1974. And I would have found myself in pretty much complete agreement with them in their view of the limited reach of Section 404 of the CWA. But apparently, you would not have agreed with Corps and EPA counsel in 1974, but rather with the National Resources Defense Council who brought suit, almost immediately, against those regulations. Were the Corps and EPA merely misguided, back then? Apparently, seriously so in your view. And it has only been through the good graces and beneficence of the National Resources Defense Council along with a litany of other environmental organizations in concert with concerned bureaucrats within the government and many honorable judges on the federal bench, all completely devoid of any "ulterior motives", that the Corps (and the EPA!) were able to right the wrong and get this Corps/CWA thing on the right track. Or, is the CWA a "living document"? This message has been edited. Last edited by: Matt Reed, |
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David Thomson said:
David, I read through the linked document and didn’t find where the CWA has been amended. I am not aware of any amendments to Section 404 of the CWA since it’s inception in 1972, correct me if I am wrong. As Matt Reed points out, if the law hasn’t changed since 1972, why would the jurisdictional limits change? Johnny, What about those high costs of California houses? |
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Andrew, I was going to bring this up again shortly, but here it is for you now: USACE timeline of the CWA Hope that helps. I am trying to relay that CWA enforcement has evolved along with the Legislature's understanding of the role played by waters found in various habitats or parts of the hydrologic cycle. |
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Regarding the high costs of California homes, the following is a summary of my experience and impressions from working in this state.
In Southern states (Tex., Louisiana, Miss.) we typically sell a starter home with 3 bedrooms, 2 baths, and 1 car garage for around $120,000. The same new home in California costs about $500,000, when available. This fact is easily confirmed in real estate ads from major California newspapers. Practically all the undeveloped land in California is potential habitat for federal and state listed endangered and threatened species. California has an ever growing list of protected species which effectively curtails most new development. Most undeveloped land is regulated under federal, state, and local environmental and land-use laws. There are thousands of rules governing impacts such as wetlands, stormwater, water quality, air quality, urban sprawl, recycling, environmental justice, cummulative impacts, secondary impacts, habitat, smart growth, environmental justice, and climate change. There is much overlap, duplication, expense, and waste in California's environmental regulatory system which gives one the impression of rampant graft and corruption. In California (which is in the federal Ninth Circuit Court of Appeals), water vapor, ground water, humidity, ditches, sewer pipes, swimming pools, bath tubs, kitchen sinks, and vegetable soup, are all considered "waters of the United States," as David mentioned. There is no limit and no effective controls on the power of regulators to defeat and discourage land development projects. Environmental law in California is based on the opinions, ideology, and political affiliations of individual regulators. The lead time in permitting a land development project is 5 to 10 years, as compared to around 1 year in the South. Killing real estate development projects is a public sport in California. There is a political and public consensus against land development and affordable housing. The environment should not be used to support new human habitat. As a result, young couples seeking their first home are encouraged to leave California. Couples choosing to stay must spend large sums on small apartments. California tends to frown on children and heterosexuals may feel unwelcomed. There is support for regulating the number of children per family. In the late 1980s I worked on a project in Salinas, California. We spent three years obtaining all required permits and approvals. After starting construction we were stopped when two individuals petitioned a regulatory agency to reopen the permit process and compel a full environmental impact statement. Our project was defeated and we and lost $18 million dollars. Today there is no affordable housing in Salinas. Under California laws, if one or two citizens oppose a land development project then they are empowered to stop it using the full faith and credit of California's environmental regulatory system. In California, state regulators regulate municipal regulators and impose environmental mandates which municipalities are required to fund. As a result, a high percentage of local taxes goes to fund endless environmental mandates, and the state government constantly raises environmental and regulatory fees. Typically, a new home that sells for $500,000 includes over $100,000 in this price to pay for permit fees, impact fees, environmental fees, and other regulatory fees and taxes. New home buyers are viewed by state and local governments as a resource to collect taxes and fees. We sell around 30% of our new homes in Louisiana and Texas to people fleeing California. Most of the large land development companies in America avoid doing business in California. |
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Andrew,
Section 404 of the CWA has been amended just once, in 1977. The amendments were extensive and implicitly (by way of activities exempted, mostly) recognized the then judicially expanded jurisdictional reach of the Corps to include wetlands. But neither the original language nor the amendments in 1977 ever explicitly recognize jurisdiction expanded beyond navigable waters. |
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Section 404 of the CWA
(whistlin' past a graveyard, steppin' on a crack...) |
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Dear Matt Reed,
I sincerely appreciate your legal acumen and recall of the Clean Water Act. You polish this forum with decorum. Are you related to the famous Reed Hopper of the Pacific Legal Foundation who successfully argued Rapanos and hosts the blog below? http://rapanos.typepad.com/my_weblog/ |
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