quote:

Originally posted by Matt Reed:

David,

This is turning into Rosie and Donald. (I'll let you decide which is witch, er, which.)

I thought I DID share my "casual dismissal" of the agencies' determinations? It's right there in your quote of my post! Oh, well.

No, wait! Now I see. I edited my original post and deleted the cumbersome reference to the "agencies' determinations" for a snappier read ('brevity is the soul of wit', and all that). I did that after you had already quoted my post. Is that the problem? My bad! I'm so vain about my posts.

---inserted from the prior post in question---
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.
---definition missing---

More importantly, your timeline link DOES NOT show any rulings indicating an expansion of the Corps' GEOGRAPHIC!!! jurisdiction beyond "the navigable waters", until 1977 (OK maybe it's 1975. Are we going to quibble over two years? For ease of reference, let's just call anything after 1975, the "modern era", "post-Enlightenment", if you will. With any luck, we'll be back in the Dark Ages by Christmas!), which is, as I said, when our current problems with jurisdictional reach commenced. I know you contend that I'm missing most of the ballgame, but what am I missing, here?

quote:

link
In 1985, the Supreme Court decided United States v. Riverside Bayview Homes, 474 U.S. 121 (1985). The Court upheld the Corps’ section 404 definition of “navigable waters” to the extent it covered wetlands adjacent to waters that are navigable in fact. The Court found it significant that in section 502(7), Congress had defined “navigable waters” as “the waters of the United States”:

[T]he Act’s definition of “navigable waters” as “the waters of the United States” makes it clear that the term “navigable” as used in the Act is of limited import. In adopting this definition of “navigable waters,” Congress evidently intended to repudiate limits that had been placed on federal regulation by earlier water pollution control statutes and to exercise its powers under the Commerce Clause to regulate at least some waters that would not be deemed “navigable” under the classical understanding of that term.

474 U.S. at 133. The Court also found that in the 1977 Clean Water Act, Congress had acquiesced in the Corps’ inclusion of adjacent wetlands in its definition. Id. at 135-39.

quote:

link
NRDC v. Callaway, 392 F. Supp. 685, 686 (D.D.C. 1975).
In response to NRDC v. Callaway, the Corps promulgated a much broader definition, that no longer was tied to navigability. See 42 Fed. Reg. 37122, 37144 (July 19, 1977) {Exhibit 8}. The Corps’ 1977 regulations defined the term “waters of the United States”2 as:

(1) The territorial seas . . . .;
(2) Coastal and inland waters, lakes, rivers, and streams that are navigable waters of the United States, including adjacent wetlands;
(3) Tributaries to navigable waters of the United States, including adjacent wetlands (manmade nontidal drainage and irrigation ditches excavated on dry land are not considered waters of the United States under this definition);
(4) Interstate waters and their tributaries, including adjacent wetlands; and
(5) All other waters of the United States not identified in paragraphs (1) – (4) above, such as isolated wetlands and lakes, intermittent streams, prairie potholes, and other waters that are not part of a tributary system to interstate waters or to navigable waters of the United States, the degradation or destruction of which could affect interstate commerce.

Footnote: 2 The Corps defined the term “waters of the United States” in place of “navigable waters” in an attempt to distinguish clearly between its CWA section 404 jurisdiction over “navigable waters” and its Rivers and Harbors Act jurisdiction over “navigable waters of the United States.” 42 Fed. Reg. 37127 (July 19, 1977) {Exhibit 8}.

quote:

Originally posted by Matt Reed:
David,

Let's apply the "Plain Meaning Rule" to the phrase you quote from the 1985 Riverside opinion: "...to regulate at least some waters that would not be deemed 'navigable' under the classical understanding of that term." I don't think that anyone's plain meaning rule will lead one to interpret that phrase to mean "any water, anywhere".

quote:

Originally posted by Matt Reed:
I readily concede that Congress, for practical purposes necessitated in regulating traveling pollutant discharges under Section 402, fully intended for the EPA to take jurisdiction over such pollutant discharges into many tributaries to navigable waters that were not "navigable" themselves. Such a practical consideration is simply unnecessary in regulating the discharge of dredged and fill material. And I know that elsewhere in either Riverside or SWANCC, the Opinion of the Court contains a statement that the use of the word "navigable" is not completely without meaning.

quote:

Originally posted by Matt Reed:
David,

The question of the limits of federal jurisdiction over anything is strictly a political one. Unless a law makes a specific reference to a scientific criteria, federal jurisdiction is never a scientific question.

Why didn't Congress just include the word "wetlands" in the original CWA? Or even "tributaries" Why?

quote:

...

The most recent major amendments to the law are the Water Quality Act of 1987 (P.L. 100-4). These amendments culminated six years of congressional efforts to extend and revise the act and were the most comprehensive amendments to it since 1972. They recognize that, despite much progress to date, significant water quality problems persist.

Among its many provisions, the 1987 legislation: (1) established a comprehensive program for controlling toxic pollutant discharges, beyond that already provided in the act, to respond to so-called “toxic hot spots;” (2) added a program requiring states to develop and implement programs to control nonpoint sources of pollution, or rainfall runoff from farm and urban areas, plus construction, forestry, and mining sites; (3) authorized a total of $18 billion for wastewater treatment assistance under a combination of the act’s traditional construction grants program and a new program of grants to capitalize State Revolving Funds; (4) authorized or modified a number of programs to address water pollution problems in diverse geographic areas such as coastal estuaries, the Great Lakes, and the Chesapeake Bay; and (5) revised many of the act’s regulatory, permit, and enforcement programs.

Legislative Activity after P.L. 100-4. Congressional oversight of water quality issues was limited immediately after enactment of P.L. 100-4. Subcommittees held general oversight hearings, as well as several hearings on individual issues (wetlands protection, Chesapeake Bay programs, and toxics contamination of Great Lakes waters), but reserved extensive review and oversight until implementation had been underway for some time.
...

quote:

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 hassling the Fed for picking up the slack?

quote:

Originally posted by Johnny Stevens:
Regarding the EPA/Corps interim guidance on Rapanos, David said:

"...Sorry, but I cannot be accept the document you linked as official since it does not originate from the Corps website. It does not appear in the Corps guidance documents (I linked them above) either, probably because it is not actually guidance on how the regulatory program may or may not change. It appears to be a "stay of execution" order - do nothing until guidance can be issued. I have spoken with Corps regulatory representatives from the San Francisco Branch after a jurisdictional determination was delayed, and all they said was JDs involving adjacent wetlands were not going to be verified until they recieved further guidance from the Head Office..."


Dear David,

I understand your reaction because I found it hard to believe when I first read it. If you have any doubts about its authenticity or official status then please call Mark Sudol, Russ Kaiser, or Lance Wood at the Corps headquarters in Washington DC, and they will tell you that it is the current official policy in light of Rapanos.

As a result of the interim guidance and relevant court decisions, many developers are now proceeding with projects without obtaining a Section 404 permit from the Corps.

Under the interim guidance, some Corps districts will not issue an official approved jurisdictional determination in Section 404 waters at this time.

Land owners may proceed with their projects if they believe and have properly documented that their projects are not-regulated as a result of Rapanos/Carabell.

You asked if it would be safer to wait until the substantive guidance is issued, before relying on the interim guidance. …

quote:

David Thomson wrote: 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 hassling the Fed for picking up the slack?

quote:

Originally posted by Andrew Geffert:

David,
Why are there wetlands over which the corps doesn't take jurisdiction? With your interpretation of Section 404, the corps should require permits for any wetland impacts on any wetland in the nation (possibly in the world). However, there are clearly wetlands over which the Corps have no jurisdiction, such as when the corps makes (made) Jurisdictional Determinations showing no jurisdiction. Apparently, not even the Corps agrees with you that they regulate all wetlands (and other waters) in the US.

And YES, it is in the interest of the states to have the Feds pay the cost of administering (and fighting over) a regulatory and permitting program. As far as fighting this, it is the Feds that are applying the laws incorrectly, not the states. This is the beauty for the states; they can stay out of the fight since the Feds are willing to carry battle.

quote:

…
Wetlands. Public debate over the nation’s wetlands has come to focus on questions of the effectiveness and costs of wetland resource protection efforts, rather than on whether such resources should be preserved. The permit program authorized by Section 404 of the Clean Water Act is one of the major federal programs that protects wetlands. However, environmentalists and others have criticized Section 404 as being inadequate to prevent the continuing loss of wetlands, due to statutory exemption of certain types of actions on farmlands and weak enforcement. Those wishing to develop wetlands maintain that existing laws are already an intrusion on private land-use decisions and that further federal involvement is unwarranted. How best to protect remaining wetlands and regulate activities taking place in wetlands has become one of the most contentious environmental policy issues facing Congress and was a prominent element of clean water debate during the 103rd and 104th Congresses. Although there has been no recent legislative activity on Section 404, committee hearings were held on several issues arising from judicial decisions, administrative actions of interest, and implementation of current law. Particular attention has focused on issues related to a 2001 Supreme Court case which narrowed the IB89102 01-19-06 CRS-12 government’s regulatory jurisdiction over isolated waters, Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers (531 U.S. 159 (2001)). Since that ruling, some federal courts have interpreted SWANCC narrowly, thus limiting its effect on current permit rules, while a few have read the decision more broadly. The Supreme Court is scheduled to hear arguments on February 21 in two cases brought by landowners (United States v. Rapanos; Carabell v. U.S. Army Corps of Engineers) seeking to narrow the scope of the Section 404 permit program.

On January 15, 2003, EPA and the Corps issued guidance to their staffs in the field for regulating in light of SWANCC and related cases. At the same time, the agencies issued an advanced notice of proposed rulemaking (ANPRM), seeking public comment on possible rule changes not yet proposed but which may be needed in response to the legal decisions. The agencies received more than 130,000 public comments on the ANPRM, most of them negative, according to EPA and the Corps. Since the 2001 ruling, House and Senate committees have held several hearings to examine issues and frustrations arising from government and judicial interpretations of the decision. On December 16, 2003, EPA and the Corps announced that the Administration will not pursue development of rule changes concerning federal regulatory jurisdiction over isolated wetlands. The EPA Administrator said that the Administration wanted to avoid a contentious and lengthy rulemaking debate over the issue. Environmentalists and state representatives expressed relief at the announcement. Interest groups on all sides have been critical of confusion in implementing the 2003 guidance, which constitutes the main tool for interpreting the reach of the SWANCC decision. However, environmentalists remain concerned about diminished protection resulting from the 2003 guidance, while developers said that without a new rule, confusing and contradictory interpretations of wetland rules likely will continue. (For additional information, see CRS Issue Brief IB97014, Wetland Issues.)
…

quote:

Originally posted by Matt Reed:
David,

I can't take it anymore. Wetlands are important to the physical, biological and chemical...and who knows, maybe even the spiritual integrity of the nations waters!!!!! OK???!!!

That's a scientific determination made by scientists. A determination that informs the politicians as they write laws. But for some reason the politicians in Congress in 1972 did not include wetlands in the jurisdiction of Section 404 of the CWA. You know why? You wanna know why? I'll tell ya why.....POLITICS!!!!

And I don't believe in evolution!....of people or of the interpretation of laws. So, there!

quote:

Originally posted by Matt Reed:
David,

I must've missed that course offering on the evolution of a law. I remember "How a Bill Becomes a Law" from civics class. And I know laws can be amended. But how a law changes into another law? I missed that one. Is it like Cro-Magnon becomes Homo sapien?

Anyway, where were we? Oh yeah. The CRS reports. I'm guessing that's the Congressional Record? About that. All one can say is that regardless of what was debated and discussed before the "bill became a law", we know that those that may have advocated on the debate floor for the inclusion of wetlands in the CWA evidently did not prevail. And in a representative republic, the provisions of the law that gets on the books are the ones enforced, not the provisions of the bill that is debated.

Call that "Scalia Reductionism", if you wish. But I think that's the way it's supposed to work.

…

Back to the CWA: We all know that wetlands are important (See, I said it again, unsolicited and without coaxing). So, why permit any filling in wetlands? Why not flat-out prohibit filling in wetlands? You wanna know why? Yep. That's right. Politics.

Typically, the enforcement of a law weakens over time. Unless amended, the enforcement and application of a given law tends to fade rather than expand over time. There are, obviously, exceptions: ....

quote:

my own from the previous page:
… Legislative Activity after P.L. 100-4. Congressional oversight of water quality issues was limited immediately after enactment of P.L. 100-4. Subcommittees held general oversight hearings, as well as several hearings on individual issues (wetlands protection, Chesapeake Bay programs, and toxics contamination of Great Lakes waters), but reserved extensive review and oversight until implementation had been underway for some time. …