SWS Forum - Main Page SWS Forum - Main Page General Wetland Topics Connecting the dots-possible scenario|
Go
|
New
|
Find
|
Notify
|
Tools
|
Reply
|
|
I was trying not to read too much into your post... are you were implying that Congress and Webster's use different logical constructs? You seem to feel that the interpretation of "plain english" words is very important, so I get the impression that you are reaching the crux of your argument(s). I am curious to see where this leads. |
||||
|
 |
David Thomas wrote:
The guidance document you linked is a bit misleading. If you look at the General Permit for Vermont, page 4 http://www.nae.usace.army.mil/reg/vtpgp.pdf It describes "Category A; eligible without screening, non-reporting to the Corps" This is the permit already issued, so if you qualify for the permit, you don't need to ask for permission. You are correct that it not a blanket permission and many projects don't qualify for the General Permit. Most people don't bother with that detail. |
|||
|
After the SWANCC decision in Jan. 2001, we withdrew a permit application on a project in Louisiana because the wetlands were isolated. The Corps objected, but a few months later the 5th Circuit Court of Appeals, issued a ruling in the case of Rice vs Harken, which supported our decision.
Later, the 5th issued the Needham decision which further supported land owners, and most recently it issued another favorable ruling in Chevron Pipeline Co. Since 2001, we have developed several large projects in the Fifth Circuit without applying for Corps permits, and the Corps has not taken enforcement action because our work complies with the law. We try to avoid projects that require a Corps permit. We understand that wetland law is different in the Fifth Circuit, and other federal courts such as the Ninth Circuit in California adopt a more expansive interpretation of CWA jurisdiction. I invite David and other regulatory employees to visit and study the Fifth Circuit (Texas, Louisiana, Mississippi) and witness the fact that wetlands are thriving and well protected despite our narrow interpretation of CWA jurisdiction and relative abundance of affordable housing. |
||||
|
I am not a regulatory employee, as stated previously. And I would hesitate to accept a blanket apprasial of the status of our Nation's waters in Texas, Louisiana (which I have an appreciation of), and Mississippi, much less your attribution that their status is due to the methods of that Corps District. Can you cite a quantative report to substantiate your statement? By the way, I recieved my answer from the manager at Centex. He thought that your estimate of $100K per box is most likely high. He did not discount the cost of environmental compliance, but he thought that California's Title 24 energy conservation requirements are a more significant factor in home prices. He also said that the Nation's Top 5 US homebuilders (which includes Centex) are all very active in California, not to mention the countless smaller builders, and that a homebuilder would be crazy NOT to take advantage of the California market. |
||||
|
How do you get a General Permit from the Corps without contacting them? Ah, I see, New England now has "Programmatic General Permits" - and qualified activities are in essence pre-permitted. The way that the New England branches justified these programmatic GPs was as follows (from HERE):
I am glad to see that the States in New England have taken some of the burden of CWA compliance off of the shoulders of the Fed. This also gets rid of the silly song and dance about the Interstate Commerce Clause. I wouldn't worry about this Andrew. |
||||
|
David said:
"...He [brother who works for Centex] also said that the Nation's Top 5 US homebuilders (which includes Centex) are all very active in California, not to mention the countless smaller builders, and that a homebuilder would be crazy NOT to take advantage of the California market..." Dear David, Thanks for the clarification. Your brother correctly points out that the California market is very good for expensive, high-end, homes. Due to the incredible wealth of our Nation, there are plenty of people who are rich enough to live in California. My point is that ordinary middle class citizens and young married couples typically can not afford a new house in California. Human habitat is diminished due to excessive regulatory restrictions on land-use, which includes expansive CWA jurisdiction. You are also correct that other fees, taxes, permits, and approvals (not just environmental compliance), contribute to the high price of a new home in California. Regarding the CWA, my favorite part is Section 404(f)(1) - statutory exemptions from regulation for agricultural and maintenance activities. Congress did not intend to regulate wetlands caused by neglected maintenance, and included these exemptions that allow land owners to maintain existing ditches and culverts, mow, and re-establish good drainage. Over the years we have learned how to maintain land in accordance with Section 404(f)(1) prior to delineating wetlands, which is the duly authorized intent of Congress and the CWA. While we may disagree on certain points, we should all agree that we are obligated to obey the law. We obey the law in the Fifth Circuit and Centex obeys the law in the Ninth, so the situation is legally neutral. Is the Ninth Circuit morally superior to the Fifth Circuit? |
||||
|
 |
David,
Section 404 of the Clean Water Act: "....into the navigable waters...." Plain English. |
|||
|
That's it eh? Well let's get things straight first: Section 404 is part of the rules promulgated by the EPA based upon the law written by Congress (US Code). US Code > TITLE 33 > CHAPTER 26 > SUBCHAPTER IV > § 1344. Permits for dredged or fill material I note that the actual US Code states "navigable waters". The origin of the use of "navigable waters" as a Federal nexus with the ICC was noted in an earlier link I posted from the Corps (historic case law). And let's look to the EPA for a short discussion of this seeming inconsistency that you have pointed out: Was Section 404 Program Intended to Regulate Wetlands?
Obviously that page was written pre-SWANCC/Rapanos/Carabell, but it should get the ball rolling on a discussion of interpretation(s) of the term "navigable waters". One question for you: when Congress gets around to updating the terminology of the CWA (as directed to by the Supreme Court in SWANCC), rewrites "navigable waters" as "waters of the US", and defines them to include enough of the hydrologic system to ensure the goals of the act are met - will you be satisfied? |
||||
|
|
|
David,
In answer to your last question: I would be satisfied if Congress clarified its terms. If such clarification clearly specified expansive regulation of waters and wetlands, then the Corps and the EPA should follow the law. However, Congress has had 30 years and a litany of court cases to motivate them to transform their simple Corps dredge disposal permitting program into a federal land-use regulatory program, and they have demurred, preferring instead to turn a blind-eye to the Corps' romp over the landscape and create one by default. So, you gotta ask yourself one question.....Do you feel lucky, er, no, uh, pardon me, uh... What makes you think they'll ever do what you propose? |
|||
|
Ignoring your seemingly jaded view of the Corps' implementation of rules promulgated by the EPA, as you ignored my post of the EPA's direct response to such accusations, I will go on to suggest that perhaps Congress has been pleased enough with the EPA's and the USACE's evolving interpretation of TITLE 33 > CHAPTER 26 to feel rewriting the law is unwarranted, regardless of what the top tier of the Legal Branch has said of late. Which theory has the fewest assumptions? I can say that mine does not attribute some ulterior motive to the Corps or the Congress, whereas you appear to assume the Corps is on some kind of a joy ride with the implied consent of Congress... I just wish you would state at whos expense? |
||||
|
|
|
David,
Thankfully I am not too worried, most legal filling of wetlands without regulatory involvement has minimal impact on water quality. The two states that I have worked in where this is possible are Vermont and Michigan. As you say, in Vermont the Corps has a Programmatic General Permit that allows non-reporting minor fills, and state doesn’t regulate wetlands that don’t show up on NWI maps. Wetlands not regulated by Vermont tend to be small and isolated wetlands. In Michigan, the state has mostly taken over 404 permitting from the Corps. Under Michigan law, many isolated wetlands are not regulated. Again, these unregulated wetlands tend to be small and isolated. It is apparent that some states (VT and MI) deemed that some wetlands are not worth protecting. Is it such a stretch to imagine that the US congress thought this way too when they wrote section 404 of the CWA? The US Supreme Court seems to think so. I also agree with Matt Reed; if the US congress amends the CWA to include all waters in the US, including every puddle, ditch, humidity and chicken soup, then we won’t speculate about the meaning of Waters of the US. The discussion would change to the constitutionality of requiring a permit to add noodles to chicken soup. |
|||
|
|
|
Andrew,
"Chicken soup", "noodles". Well put. That's good. I agree. David, At whose expense? At the expense of the integrity of the law and the public's trust in the law and its government. The law exists in the words that are composed and written by elected legislators, not in the ever-expanding interpretations of bureaucrats and judges. But that's a tired old saw. And I get bored repeating it. |
|||
|
Andrew, I am not sure where you are getting your information; the USFWS NWI mapped "isolated" wetlands in Vermont. I took a peek at their online map server and they are there. USFWS NWI Please refer to the Service's report on Geographically Isolated Wetlands (available through the above link) and navigate to the TOC, then Section 3. "Extent of Isolated Wetlands in Selected Areas", scroll down to Region 5 (which includes Vermont), and finally the "Bread Loaf" study area: NWI mapped around 40 isolated wetlands in that study area alone. I am not saying the NWI should be the final arbiter of where all wetlands are found however. PS - your chicken soup analogy is cute, but it is not a useful analogy because it overlooks the role of "significance" in determining regulated impacts. |
||||
|
Do you have data to support your assertion that the Section 404 program undermines the public trust? And I don't mean the few grumblers - the vocal minority must not be taken for the majority - I mean the public at large. I don't get that impression at all. In fact, I would guess that people are grateful that the Fed has mandated clean water, and continues to work on it. |
||||
|
Matt said:
"...Congress has had 30 years and a litany of court cases to motivate them to transform their simple Corps dredge disposal permitting program into a federal land-use regulatory program, and they have demurred, preferring instead to turn a blind-eye to the Corps' romp over the landscape and create one by default..." Dear Matt, For the first time in history, a woman is Speaker of the House and this could impact the CWA. The link below informs us that Senator Barbara Boxer (Democrat from California) is the new Chairperson of the Senate Environment and Public Works committee. She announced that this committee will review the recent Supreme Court case of Rapanos and Carabell, as a top priority. Incoming House Speaker Nancy Pelosi and Senator Boxer may finally give the CWA the badly needed attention that has been lacking for the past 30 years under male leadership. There has been some speculation about the term "San Francisco values" because both Ms. Pelosi and Ms. Boxer have a strong political base in the Bay area. If San Franciso values are applied to the CWA then we may see the realization of David's arguments. Women have attained leadership roles in both the Society of Wetland Scientists and Congress. I hope they will lead our Nation towards reconciliation of the CWA and healing in Iraq. http://aswm.org/index.htm#wbn |
||||
|
|
|
David,
No, I have no data to support my assertion. I was speaking from general principle. And what I hear you saying is that as long as the government "mis-regulates" a small minority and the majority of people don't complain, it doesn't matter what the law says. Is that what you're saying? I hope that the insult to American republican (small "r") principles inherent in that position is self-evident. Johnny, As power shifts in Washington, I share your hopes and fears. This message has been edited. Last edited by: Matt Reed, |
|||
|
|
|
David wrote:
Let use an unpopular liver soup. It is the EPA and Corps that determines what is "significant". If the agencies decides that liver soup is significant, then you may need a permit to pollute the soup with noodles. Since few people care about liver soup, few people will oppose the EPA requiring permits to pollute liver soup. Congress will not do anything because they have more important things to do. Does that mean the EPA is correct in regulating liver soup? The silence of congress is implied approval of interpretation no mater what the courts say? As you suggest, NWI does not pick up all wetlands. Unmapped wetlands are (mostly) not regulated by Vermont. |
|||
|
Funny, but I have not heard of any legislators, republican or otherwise, complaining about the EPA's/USACE's interpretation of this law... perhaps there has been one or two, but such squeeks could be chalked up to politics. If there were "mis-regulation" occurring they would have something to say, which would carry alot more weight than the opinions of a few developers here and there or some private landowners who do not appreciate the scope of impacts to the Nation's hydrologic system or the cumulative effects of seemingly minor impacts. [DELETED AS REQUESTED) This message has been edited. Last edited by: David Thomson, |
||||
|
Liver soup is not as cute to as many folks, but your insistence on using food analogies to discuss the CWA has forced me to bring up some interesting research occurring in Puget Sound (WA State): The Sound is Flavored by the Holidays
I'm not saying that soup is having a significant impact on the integrity of the Nation's waters, but there is evidence that it can... But getting back to your flawed analogy, I have heard the opinions of agency counsel on SWANCC, and it negates the use of migratory bird presence as the sole nexus with the ICC. SWANCC may have also directed the Legislature to update the language of the CWA. I have looked over Rapanos/Carabell, and as far as I can tell the Supreme Courts decision was to remand the case back to the lower court for further consideration given their findings - meaning they offered no final decision on the case. I am no legal scholar, but in SWANCC they did offer a decision no? Of course someone will come along now and say this was the same method used in SWANCC  |
||||
|
Perhaps I need to reconsider my opinion of your posts... thank you for that bold gesture. |
||||
|
| Previous Topic | Next Topic | powered by eve community | Page 1 2 3 4 5 6 7 8 9 |
 | Please Wait. Your request is being processed... |