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David,
Since you did not provide an answer to my question, I am left to infer: I take it that you think that indeed it doesn't matter what the law says as long as there are no audible (read, "of interest to the media") complaints about agency "mis-regulation". And I have, as is the policy of this forum, scrupulously avoided any partisan political commentary. "Small r" republican is a reference to our form of government, not a political party. Andrew, Your "liver soup" analogy is dead-on. |
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It seems that you are having difficulty understanding my posts so I have included our recent posts, accented key parts, and added commentary in order to help you. I fear we are reaching the end of our ability to carry out a constructive dialog. When I raise key points you ignore them, and when I address your key points you appear to be unable to understand – I fear that you are not willing to face the facts. One recent example: 1) I stated “… I have not heard of any legislators, republican or otherwise, complaining about the EPA's/USACE's interpretation of this law…”, which you have interpreted as “I take it that you think that indeed it doesn't matter what the law says as long as there are no audible (read, "of interest to the media") complaints about agency "mis-regulation …” Matt, your representation of CWA enforcement is without basis in its legal history. Your statements go beyond what one could reasonably infer from any court’s findings; indeed, you avoid discussing the rich legal history of the CWA and choose to misrepresent recent legal findings. Your only response to the published legal opinions of chief counsels for the EPA and Corps was:
This is not a reasonable rebuttal… so I am afraid I am forced to conclude (again) that you have ulterior motives – perhaps you have a vested interest in limiting the scope of the CWA. You can try to change my mind by at least letting us know your background (as I have) or by clarifying your recent statements. Otherwise, adieu. |
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My background?? Now you really got me. What the %$#@ does "my background" have to do with this debate??
My recent statements are as clear as I can make them. You disagree with my representation of CWA enforcement? How is that an answer to my rather clear and fundamental question which you still have not answered: Does it matter what the law says if only a small minority complains about its misapplication? If you wish to end the debate, that's fine with me. I've known where this was going to go from the beginning, hence my reluctance to engage. And my hunch had nothing to do with your background, but with your arguments. This message has been edited. Last edited by: Matt Reed, |
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Your background can inform us as to the basis of your motivations. I am a wetlands ecologist, so I have a good understanding of their role in maintaing the integrity of our Nation's waters; and I have worked as a regulatory consultant, so I have a decent understanding of the regulatory environment - mostly because I have made a significant effort to understand the regulations. See? Answer: I disagree completely with your assessment of the CWA’s legislative and legal history. If you are incorrect, then the EPA and USACE have not innapropriately enforced the Clean Water Act and your arguments are unpersuasive. If you are correct (maybe this will help you), then I can offer: YES, it does matter what the law says, even if only ONE person brings it to the attention of the law. Remember, I am an idealist. I would be more impressed with your hunch if you had rebutted my arguments, but you completely ignored them. Now I am to understand that means you are so unimpressed that you will not even bother typing a few characters in reply... so why are you replying at all? |
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David,
I'm sure we've bored anyone that's paying any attention to tears. I've found that when I debate idealistic ecologists that we tend to just talk past one another and never resolve anything. It's kind of like an old Miller Lite ad: "clean water!", "good law!", "clean water!", "good law!"..... Thanks. |
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Sorry I don't agree with your closing statement, even if it does sound conciliatory... Good law and clean water are not mutually exclusive, and you have not pursuaded me that currently is the case. As things stand, I am not sure you tried to argue your case. And again, I have addressed your arguments - as shown above - and you have consistently ignored (or avoided?) my arguments. So be it. |
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David said:
"...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 squeaks could be chalked up to politics..." Dear David, You live in a state (California) that has state wetlands regulation. Your reality is much different than the reality in approximately 35 states that rely on federal regulation and have no state program. I recommend that you read the decisions of the federal Fifth Circuit of Court of Appeals and other courts that have ruled against the EPA/Corps interpretation of the CWA. I appreciate your interest, comments, and idealism regarding the CWA, but our personal opinions do not matter near as much as federal court opinions. Federal courts control wetlands law in this Nation and any serious student or advocate must be grounded in relevant case law. Relevant case law interprets the CWA and tells us when and if a permit is required. As a developer, I rely on my Attorney and the plain language of the courts. Currently, neither the EPA nor the Corps have the legal expertise to compose and issue a substantive guidance document to interpret and apply the recent Rapanos decision. Recently my Attorney interpreted Rapanos and taught regulatory staff when a permit is not required. All that really matters is relevant case law in each federal appellate circuit, not EPA's/Corps interpretation of the law, or our personal opinons about the CWA. We know that Congress will not reconcile the CWA before it deals with Iraq, so we must continue to rely on relevant court decisions indefinitely. This message has been edited. Last edited by: Johnny Stevens, |
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Johnny, I would look into your suggestion if I was staying in this field – thanks. But isn’t that putting the cart before the horse? Certainly it appears to feel that way to all of us here, since we all agree that the Leg needs to update the language of the CWA and end this song and dance – even if we do not necessarily have the same motivations or desires. I have to point out that the Legislature is in control of the law; it’s the courts job to ensure the Legislature’s laws comply with the Constitution, as well as pointing out bad writing – clarity issues – such as “navigable waters”. It is my understanding that the law is primary, as written by the Leg, followed by the rules based upon the law, as promulgated by the regulatory agencies. In this case the courts are there to provide a check and balance to these two entities; the goal should not be to rely upon them… If the Leg has overstepped the Constitution, or the agencies have overstepped the law, the courts can bring them back into line. As I said earlier, if the agencies were truly misinterpreting law and overstepping the bounds set by the Constitution on the Fed – thus infringing upon States rights - the States would be arguing before the courts. But they are not complaining are they; and the Leg is not complaining about the rules promulgated by the agencies; it is only a few plaintiffs. Consider the vast numbers who work with the agencies (in essence to help implement the CWA) and never file suit. Would the plaintiffs (SWANCC, Rapanos/Carabell, and whatever number who never get to the high court) constitute a significant percentage of the regulated public? I bet not. PS – Your comments come across as a bit too condescending. Maybe it’s because I don’t feel outside of the mainstream in the way you have presented, even if this forum were a reflection of America. It appears the vast majority of forum users either do not care enough about the topic to post, or don’t want to be involved with feeding trolls. But the simplest answer is they probably do not have as much time to ponder the nature of regulatory compliance as us. PPS – if your lawyer is teaching agency regulators when to regulate, then your District has bigger problems than interpreting the CWA. |
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David said:
"...As I said earlier, if the agencies were truly misinterpreting law and overstepping the bounds set by the Constitution on the Fed – thus infringing upon States rights - the States would be arguing before the courts. But they are not complaining are they;..." Dave, You make a good point about the states. I believe that most states prefer that the feds regulate wetlands. Ordinary citizens are impacted when federal regulatory agencies overstep their boundaries, and we have a legitimate legal claim regardless of what the state government may do. Under Rapanos, the Supreme Court said that the Corps could no longer use "waters of the United States" to regulate land use. This is because land use is a traditional state right. In many parts of the U.S. the Corps has become the lead agency in land use regulation. The Corps regulates land use under "single and complete project" and gives itself authority to review an entire project instead of just "waters." It will be more difficult for the Corps to continue this practice going forward, especially in states that do not have their own regulatory program. To clarify, our Attorney merely taught the regulators what the Supreme Court said in the Rapanos decision, and what the Corps/EPA headquarters said in its interim guidance document issued on 7-5-06, and relevant case law. This message has been edited. Last edited by: Johnny Stevens, |
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David,
Clean water? Love the stuff. Had some this morning in my coffee. Showered...shaved.... And wetlands? I love a good wetland. The oceans, lakes and streams, I love them all for what they provide in physical and spiritual sustenance. In fact there are times when I'd like to give the whole natural world a hug. I thank God for it. And the EPA? I thank God for Richard Nixon and the EPA and the progress that has been made in cleaning-up our environment in the last 35+ years. I also thank God for the Founding of this country and the principles of private property, the Rule of Law and a Constitutionally limited government (insert fife and drum strains, here). I place a very high value on these things. And I don't believe that the mostly tenuous and marginal environmental benefits that accrue to the nation's navigable waterways from much of the so-called "aquatic resources" controlled by the Corps/EPA 404 program that exist, really, in a form that the average man-on-the-street would recognize as private land are worth the sacrifice of those values. And I don't think Congress does, either. And never has. (Or at least has never had the political will to assert as much.) And further, I'm inclined to suspect that those that do advocate and agitate for trading those values that I hold high for some cheap federal land use regulation are either naive, woefully ill-educated or have an agenda of "ulterior motives". That's my speech! How's that for idealism!? This message has been edited. Last edited by: Matt Reed, |
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Matt, Thank you for sharing your idealism. I do respect some of your underlying principles, but I have a couple of issues with what you have posted. Rather than carrying on with useless bickering I will ignore the insults and focus on one logical flaw I have highlighted above. I must point out again that Congress did approve the CWA and has reauthorized it repeatedly, even subsequent to the broadened reach we are currently discussing. Please review the following link for a brief of the CWA’s history: CWA summary, and one sublink for current wetland-related issues. CWA history aside, it is obvious that you do not have an appreciation of the role played by wetlands and other non-navigable features in maintaining the integrity of our Nation’s waters or a grasp on the big picture (spatially and temporally speaking). I gather from your earlier posts that you have discussed aspects of their role in maintaining clean water with ecologists before, and obviously left the table unimpressed. Putting that aside for now, let me take the other shot at broadening your horizons… it won’t hurt I promise. The Big Picture Let me use California as an example, since I have the numbers in my head. The numbers will vary from State to State, which likely plays a role in why considerations of significance differ regionally (but that is a different yet concurrent discussion). Prior to the CWA era, approximately 90% of California’s wetlands were impacted; and approximately 90% of those impacts were caused by agricultural use. You need to know this because this information is implicit in each finding of “significant impact” on permit applications. Based upon your responses to date I can imagine you asking why grandfathered impacts are considered pertinent to the present; sounds like sins of the father eh? Simple: water is a resource and we have already over utilized it. In the past wetlands were unfortunately viewed as wasted land, with plenty of water availability and usually good soils: looks like agricultural heaven! Agriculture has taken a heavy toll on them, and I am afraid other land uses now must suffer the fact that further impacts to water resources are almost all significant, be they navigable, contiguous, adjacent, “isolated”, or otherwise. Think about it: if you have already used 90% of your life savings you had better pay close attention to how you spend the remaining 10% - or better yet, start making deposits back into your savings account! If we are to ensure our water supply for future generations we must reduce our utilization of water resources, which means we really cannot afford additional losses and should be restoring as much of these features as is feasible to all involved (rebuilding our life savings). If that train of logic does not do it for you, which would be sad, perhaps some arguments firmly grounded in the CWA era will help. One that does not utilize ecology: click here
Cumulative impacts from many permitted projects... This message has been edited. Last edited by: David Thomson, |
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You guys are talking past each other again. I’ll give this a try.
David, I agree with you that wetlands are a valuable resource that deserves protection. That is why states should do as California did and enact legislation to protect wetlands, because the federal government doesn’t regulate all of them, and/or doesn’t regulate them stringently enough. But, just because they SHOULD be regulated and the goal of the CWA is to protect water, doesn’t mean that the Section 404 has the mechanism to regulate all wetlands. Clearly, the SWANCC decision indicated that section 404 does not extend to all wetlands or even all bodies of water. Do you dispute that the Supreme Court said there are limits to the Corps’ jurisdiction? As far as section 404 impinging on state’s rights, the states would only object to this if there was damage being done. As it is, the federal government regulates most wetlands and is paying the cost of that regulatory program. States that regulate wetlands have to pay for that program, pass laws, etc. The more wetlands that the corps regulate, the better it is for states since they don’t have to do it them selves. This doesn’t mean that the corps regulatory reach is correct just because states don’t object. |
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David,
I'll ignore your reference to imaginary insults. The Bigger Picture: This may surprise you, but I really do not lack an appreciation of the role of wetlands and other non-navigable features in maintaining the integrity of our nations waters - neither spatially nor temporally. What I do lack is an appreciation of how the words "into the navigable waters" can mean "onto any landscape feature that bears any relationship, however tenuous, to water anywhere." This message has been edited. Last edited by: Matt Reed, |
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Johnny, I would like to note that Andrew’s posts brought to my attention that the Corps in New England is relinquishing control of the 404 program to the States because their programs are adequate and therefore makes the Corps program redundant. Strange that California has not garnered the same Programmatic General Permits… I agree that ordinary citizens have a right to file suit against the government, but I was trying to point out that the appropriate plaintiff in cases of limiting Federal jurisdiction in favor of State’s rights is a State. To me, these cases brought by individuals appear to be out of order. I would think that the proper order of events would be for individuals to petition their State to accept their responsibility; it appears the courts are not even required in such cases (were the courts involved in the PGP change in New England?). I did not see any prohibition against delineating “Waters of the United States” in the syllabus: http://www.law.cornell.edu/supct/html/04-1034.ZS.html It seems that they tried to limit the definition of the phrase. At any rate, they vacated the Rapanos/Carabell judgments and remanded the cases back to the Sixth Circuit for further proceedings there. My read of the syllabus (written by Scalia) is that he does not understand the role played by wetlands in the integrity of our Nation’s waters; how sad. I don’t think attorneys should be teaching Corps representatives anything; guidance should come from their superiors and the main branch. I looked in the USACE regulatory letters and the one you cite (7-5-06) is not published: http://www.usace.army.mil/cw/cecwo/reg/rglsindx.htm Do you have a link to it? |
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Andrew, I believe the EPA and the Corps have done a stand-up job of trying to attain the goals of the CWA given the obvious limitations of TITLE 33 > CHAPTER 26 > SUBCHAPTER IV > § 1344 (Section 404 is a part of the rules promulgated by the agencies based upon the law). Clearly the SWANCC decision invalidated the use of migratory bird presence alone as a valid solitary nexus with the ICC. Agency counsel also said the decision contained thinly veiled threats to the Legislature that they better deal with the outdated term "navigable" (so the courts can move on to more important business I guess). So yes, I dispute your interpretation of the SWANCC decision. I wish they would speak more clearly! Are you implying that the States have a vested interest in allowing the Fed to usurp their rights? Then why don't y'all take the States to court and stop hastling the Fed for picking up the slack? |
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David,
My dismissal of the agencies' determinations is anything but casual. It is very direct and specific. And I finally visited your timeline link. Very unimpressive. Nary a mention of any ruling recognizing a geographic expansion of Corps JURISDICTION (just scope of review) beyond the navigable waters until 1977, when our current problems commenced. There is mention of expanding the scope of Corps permit review in navigable waters beyond just impacts to navigation. That's from the National Environmental Policy Act(NEPA) in 1969. NEPA is a mighty broad and general piece of legislation. But it's the law and I have no problem with that. And it does not affect the geographic limits of Corps jursdiction. Andrew, Your assessment of states vs. Corps is dead-on. This message has been edited. Last edited by: Matt Reed, |
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David said:
"...I don’t think attorneys should be teaching Corps representatives anything; guidance should come from their superiors and the main branch. I looked in the USACE regulatory letters and the one you cite (7-5-06) is not published: Do you have a link to it?..." David, If you read my previous posts, I always caution my friends against relying on regulatory personnel for legal advice. Most regulatory staff that I have dealt with over the years have a very poor understanding of the law, and the Corps does not adequately train its regulatory people in the law. Below is the link you requested. This is the only official EPA/Corps legal guidance on the Rapanos decision. It was issued as “interim guidance” on 7-5-06 for a period of 3 weeks while headquarters promulgated substantive guidance, which never came. This interim guidance has been extended indefinitely pending the issuance of the substantive guidance. This interim guidance lists the names and phone numbers of attorneys and regulatory staff to contact for information. I recently called these contacts, and they all confirmed that the interim guidance below is the official policy at this time, and it remains in effect until the substantive guidance is issued. The interim guidance imposed a moratorium on jurisdictional determinations in Section 404 waters, and a moratorium on enforcement action on cases involving Section 404 waters. Our understanding of the interim guidance is that individuals who believe that some or all of their activities are now not subject to regulation under the CWA Section 404 because of Rapanos/Carabell, are not required to apply for a Corps permit, and can not be subjected to enforcement action (pending the substantive guidance). http://www.craig-environmental-law.com/forms/ArmyCorpsReactiontoRapanos.pdf |
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