quote:

Originally posted by Andrew Geffert:

...

David:
I am glad to see you admit that the corps does not have jurisdiction over some wetlands. And that it was the US Supreme Court’s SWANCC decision that limited the jurisdiction. You are saying that the US Supreme Court decided that the EPA and USACE inappropriately enforced the Clean Water Act by regulating wetlands and ponds outside of their jurisdiction. At least we can both agree on that.

Andrew,

You are correct in spirit (I hope). I believe I have said that I don't think the Legislature has given the EPA/USACE enough jurisdiction to enable our Nation's waters to attain the goals of the CWA. I hope the Legislature explicitly gives them more, not only for the sake of our Nation's waters but also for Matt and Scalia's love of plain english.

Clarification: I did say that agency counsel concluded the SWANCC decision eliminated migratory bird presence as a significant sole nexus with the ICC, but not the expansive interpretation that I note many who have a vested interest in limiting CWA jurisdiction propose... funny how some folks boo-and-hiss when the agencies interpret law more expansive than others and then applaud when some courts interpret case law more expansively than others. Your not supposed to have your cake and eat it too right?

EDIT: I would like to point out that the people I identified as having a "vested interest" in limiting CWA jurisdiction are those folks identified by Teddy Roosevelt here:

quote:

"Defenders of the short-sighted men who in their greed and selfishness will, if permitted, rob our country of half its charm by their reckless extermination of all useful and beautiful wild things sometimes seek to champion them by saying the 'the game belongs to the people.' So it does; and not merely to the people now alive, but to the unborn people. The 'greatest good for the greatest number' applies to the number within the womb of time, compared to which those now alive form but an insignificant fraction. Our duty to the whole, including the unborn generations, bids us restrain an unprincipled present-day minority from wasting the heritage of these unborn generations. The movement for the conservation of wild life and the larger movement for the conservation of all our natural resources are essentially democratic in spirit, purpose, and method."
A Book-Lover's Holidays in the Open, 1916

I should add that they may not realize they (and/or their descendants) also have a vested interest in contributing to the protection of our aquatic resources.

This message has been edited. Last edited by: David Thomson,

David,

You're right. Let's leave the evolution debate alone. I appreciate and accept your "middle ground" offer.

Back to "Ulterior Motives": That's such a sinister term. I prefer to frame the discussion in terms of biases. We all have them. And the hardest thing to see is our own.

Institutions and organizations are made-up of people. And people with similar biases tend to end-up in the same institutions and organizations. Before you know it, you've got an agenda. And even without knowing it, an institution, for example the media, or a government agency, is pursuing an agenda. But no one in the agency would ever acknowledge it. Because they don't see it.

Government employment tends to attract people with a "statist" bias - people that are comfortable with government control and regulation of society's activities. This is particularly true of government agencies involved in environmental regulation, where the government is seen as the default player in environmental protection.

So, you have a lot of people in the government's environmental protection agencies that are naturally biased toward an environmentalist and statist worldview. And those agencies tend to march to the agenda of that worldview - a worldview that might be summarized best by Al Gore who proclaims that "the environment should be the central organizing principle of our society".

Some of us find that to be a scary idea. And so it is with a certain alarm that we point to the bias that we identify in those that defend and advance the "evolution" of environmental regulation.

So, let me ask you this. You say that you believe in the evolution of laws as enabled by legislative acquiescence and judicial interpretion, right? In the case of the Clean Water Act, you support an interpretation that expands the jurisdiction of the agencies charged with pursuing, as you say, the goals and purposes of their authorizing legislation. You do realize that your position favors empowerment of the Executive Branch - the branch which enforces the law?

Where would you stand on a similar evolution of the Patriot Act?

This message has been edited. Last edited by: Matt Reed,

Matt,

I am happy to say: excellent post. I can meet you in the middle here. I agree that “ulterior motives” is a loaded term (i.e. judgmental), and that “biases” is a better choice. I hope I have done a fair job of stating my own (as I understand them…). Once more: I believe that the integrity of our Nation’s waters is paramount.

As I understand your own biases, you want the law as written by Congress - not the rules promulgated by the agencies, to explicitly state the limits of their jurisdiction. Without addressing the actual limits of Federal jurisdiction, nor its impact upon implementation of the CWA, I agree completely with that train of logic. If the Legislature did a better job of amending laws the other branches of the government would not have to work so hard interpreting them, and the evolution of laws – outside of the Legislature – would probably be insignificant. To sum up: the Legislature should write laws, not the agencies, courts – or the Executive Branch, which is what the Legislature’s inaction has forced them all to try and do.

This also eliminates our need to haggle about our difference of opinion on the potential biases of agency employees. Not only that but it also mitigates our need to discuss the Patriot Act, even though I do appreciate your point. But I will emphasize my point again: the integrity of our natural resources is essential to the prosperity of this country. We have taxed many of them significantly, and I believe we must now do the right thing, no matter how hard it is, and restore their integrity.

EDIT: one link for y'all to review:
The Scientific Imperative for Defending Small Streams and Wetlands

This message has been edited. Last edited by: David Thomson,

David,

Beautiful. This has been a fruitful debate. Thanks for engaging.

One point: My view allows for agency intrepretation of legislative jurisdictional limits, within the limits of commonly understood, "plain and simple", English.

Thanks, again.

Have a nice weekend!

David: I am thrilled to hear you say that Congressional acquiescence and evolving Judicial interpretations are insufficient reasons to justify Executive expansionism. During World War II, Japanese Americans were forcibly removed from their homes to internment camps by Executive order. Congress sat on its hands and did nothing in response. Indeed, this action, which would have seemed incredible and unthinkable to the courts prior to the war, was heartily endorsed by the Supreme Court in a case of evolving jurisprudence. Despite Congressional acquiescence and judicial approval, I think you and I would agree the episode is a lasting pock mark on American History. Those citizens were denied their constitutional rights despite the thin veneer of legality the government used to cover their action. Fifty years later Congress admitted the violation and attempted to make reparations.

Despite my generally sanguine humor in response to your admission, I am still a bit disappointed in your assertion that the fault of insufficient 404 jurisdiction lies with Congress for failing to be more clear in their CWA language. Your implication seems to be that Congress intended from the beginning to grant to the Corps and EPA the nearly limitless scope of jurisdiction they exercised prior to SWANCC and Rapanos. There is no evidence to support such a view. There is no reason to assume Congress passed anything but the law they intended to pass: a statute including a section which protected navigable waters, and arguably their abutting wetlands, from unauthorized filling activities.

If the sense of Congress regarding the protection of waters has expanded since the passage of the original CWA, then perhaps Congress should craft a new CWA to replace the currently outdated one. My personal view is that Congress is no more certain of its political ability to expand the reach of 404 now than it was in 1972. In response to the Executive overreach which has occurred over the past 20 years, a sizable, vocal, and well-funded property rights movement has developed to counter any such move by Congress. For every action there is an equal and opposite reaction. Perhaps the greatest damage caused by Executive expansionism in general is the unrest it causes in a politically active citizenry, the organization of which now limits Congress' ability to do what is warranted.

David said;

"...The Rapanos/Carabell decision was to vacate the judgment and remand the case back to the lower court for further proceedings – it did not strike down the regulations in Section 404 of the CWA!..."

Dear David,

I have repeatedly heard this vacant claim that Rapanos did nothing more than simply remand the case back to the lower court. As demonstrated and proven in the interim guidance document (link below), the Corps' official policy from headquarters instructs regulatory staff to stop asserting jurisdiction and stop taking enforcement action in Section 404 waters. The Section 404 regulations may not have been officialy struck down by Rapanos, but these rules have been deconstructed and are currently on hold pending issuance of the substantive guidance.

Rapanos went much further than simply remanding the case back to the lower courts. As previously noted, Rapanos/Carabell; 1) redefined “waters of the United States,” 2) rescinded the use of “hydrology connections,” and 3) required a “significant nexus” for federal jurisdiction over wetlands adjacent to non-navigable tributaries. Thus far, federal regulators have been unwilling or unable to issue substantive guidance that would change these basic rulings, and instead they issued an interim guidance that imposed a moratorium on both jurisdictional determinations and enforcement actions in 404 waters (for the first time in the 30 year history of the wetlands regulatory program).

This is why I was astonished when I first read the interim guidance, and you would be also if you worked in a state where Section 404 waters are no longer effectively regulated and the Corps has stopped enforcement.

Several weeks ago I spoke with one of the contacts listed on the interim guidance document. They told me that the substantive guidance was awaiting authorization from the White House. Who knows? If the decision rests at that level then we may not see the substantive guidance until after the war in Iraq is over. Until then, the interim guidance is the offical governing policy of the EPA/Corps in light of the Rapanos/Carabell decision, and anyone in America can take this document into a federal court and the court will recognize it as an official policy statement, unless and until the EPA/Corps modifies or withdraws it. This is one reason why the EPA/Corps put a moratorium on enforcement actions in Section 404 waters.



link to interim guidance document:

http://www.craig-environmental-law.com/forms/ArmyCorpsReactiontoRapanos.pdf

This message has been edited. Last edited by: Johnny Stevens,

Jeff said:

"...For every action there is an equal and opposite reaction. Perhaps the greatest damage caused by Executive [regulatory] expansionism in general is the unrest it causes in a politically active citizenry, the organization of which now limits Congress' ability to do what is warranted..."


Dear Jeff,

You made a good point. I would add that another factor is simple economics. It costs so much to comply with an ever expanding, unpredictable, and uncontrolled goverment regulatory system, that it becomes a matter of necessity for ordinary citizens to organize themselves, fight back, and litigate.

As you know, proponents of regulatory expansion rarely consider the costs and burdens of their agenda. Wetlands started as a simple program to protect valuable ecological resources and evolved into a massive regulatory scheme involving numerous government agencies, overlapping jurisdictions, complex and ambiguous rules, land use regulation, legal fights, and less affordable housing throughout America. Carbon dioxide regulation is proceeding down the same path.

The federal wetlands regulatory program is shrinking and the perpetrators deserve as much blame (or credit) for this as the politically active citizenry who file lawsuits.

This message has been edited. Last edited by: Johnny Stevens,

quote:

Originally posted by Jeff Rodney:
David: I am thrilled to hear you say that Congressional acquiescence and evolving Judicial interpretations are insufficient reasons to justify Executive expansionism. ...

Despite my generally sanguine humor in response to your admission, I am still a bit disappointed in your assertion that the fault of insufficient 404 jurisdiction lies with Congress for failing to be more clear in their CWA language. ...

Jeff,

You have misinterpreted my responses and overlooked much of the content of my posts and the links therein, which address your post. Sorry to upset your sanguine humor, but I never stated that I believed there are "insufficient reasons".

Congress intended, and still intends, for the CWA to achieve the goals stated in the Act. If we do not restore and maintain the chemical, physical, and biological integrity of our Nation's waters, ah sorry to be melodramatic but, we are doomed. That is why, for instance, Congress overturned Nixon's veto to pass the CWA. The legislative history of the CWA is highlighted at the links I have posted.

We seem to agreed "navigable waters" is a relic term that needs to be updated into plain - modern - english. Beyond that I can appreciate we may differ in opinion on what is sufficient to restore and maintain the chemical, physical, and biological integrity of our Nation's waters. But that is a different debate, which deserves its own thread.

Thanks for a most entertaining thread. I am glad you all have made up. Thanks for pointing out I am biased. Who would have thought!
signed - An Environmental Resource Compliance staff

David,

See what I mean? Mr. Miller, the Environmental Resource Compliance staffman, mocks the very idea that he might have a bias.

Matt,
I'm sorry. I didn't realize that this was a humourless thread.

quote:

Originally posted by Matt Reed:
David,

See what I mean? Mr. Miller, the Environmental Resource Compliance staffman, mocks the very idea that he might have a bias.

Ray,

Neither did I.

David: I am surprised to hear that you disagree with the notion that Judicial and Congressional inactivity are "insufficient reasons" to justify Executive over-reach. It is my view that the unauthorized expansion of Executive power is never justified, regardless of the lofty goals or purposes acheived by that expansion. We do not live in a police state, but a republic in which the powers of the Executive are enumerated within and limited by our Constitution.

I couldn't disagree more with your assertion that the term "navigable waters" is a "relic term that needs to be updated into plain - modern - english (sic)." As the Supreme Court pointed out in Rapanos and SWANCC, the CWA is written in plain English and plainly uses the term "navigable waters" to define the scope of Section 404. Though the Court found that the term includes something more than navigable-in-fact waters, they are quite clear that it does not authorize the limitless scope employed by the Corps/EPA over the past two decades. Congress used the term "navigable," and there is no evidence anywhere in the Act to suggest that they gave that term no meaning.

My earlier point was that if a concensus now exists within Congress to throw out the current CWA and replace it with an expanded version - perhaps one that replaces the term "navigable waters" with "all water" - then they should do so.

But the idea that the goal of an Act can or should empower the Executive to define at will the execution of that Act is dangerous. I thought Mr. Reed had made that point quite clearly using the example of the Patriot Act.

David said:

"...If we do not restore and maintain the chemical, physical, and biological integrity of our Nation's waters, ah sorry to be melodramatic but, we are doomed..."

Dear David,

I respectfully disagree with you prognosis. In America we enjoy the cleanest water and the greatest system of environmental protection in world history.

Currently, I am serving on a stakeholders committee for a Total Maximum Daily Load (TMDL) project, which is a new government program to regulate bacteria in a local bayou. Most of the other stakeholders are government regulatory employees and their contractors. They claim that the bayou is “doomed” if we fail to implement this new regulatory scheme. They make this claim despite the fact that their own research shows the water quality in the bayou has significantly improved over the last 40 years since the advent of the Clean Water Act.

Our regulatory “stakeholders” are concerned about incidental contact of children playing in the bayou and contracting bacterial infections. However, we do not have one documented case of such an incident ever occuring in this bayou.

Over the last two years of stakeholders meetings it has become increasingly clear that the primary beneficiaries of this TMDL program are not children, but regulators and their contractors who derive employment and other taxpayer funded financial incentives for administering the program.

First the regulators said that children are doomed and we successfully defeated this argument. Then they said that everyone in the community is doomed because the EPA may fine us $50,000 per day if we fail to implement the TMDL program. Thankfully, the current administration has put the brakes on TMDLs, but we may be doomed again after the 2008 elections.



ps. I recently spoke with a Corps staffer at Headquarters and they reported that the OMB approved the draft substantive guidance but made major revisions. The revisions have been sent back to EPA,Corps, and DOJ for review. The substantive guidance may be issued in 2-4 weeks (or after the war in Iraq is over). Until then, the interim guidance remains the official policy.

Despite what happens with the guidance and the wetlands regulatory program, we are not doomed. Life goes on and our days are numbered so we should not unreasonably burden ourselves with the temporal issues of secular society.

This message has been edited. Last edited by: Johnny Stevens,

Johnny,

Wise words. Wise words, indeed. Our concerns are "temporal", for sure. And it does become apparent, after a spell, that there are those for whom our temporal "doom" is both a boon and a boom. And that you just gotta keep such folks outta your bayou if you're gonna pursue the important things in this life .

P.S.

Mr. Miller,

Isn't it amazing what one's avatar does for the perception of one's posts.

Johnny: Thanks for the update on the Rapanos Guidance. Rumors have been swirling of late, but nothing firm has been established. Truly this must be the best kept secret in Washington. It seems as though everyday we hear of some top secret war material exposed, but this draft wetland guidance is kept under lock and key. Hasn't anyone seen an advanced copy of this thing? Does no one have a sense of what it might say? Can it really be that no leak has occurred?

Am I the only wetland-watcher on the edge of my seat over this?

If you are out there and know something, throw us a bone already!

So many questions, so few answers. I shall now return to my pathetic life.

quote:

Originally posted by Matt Reed:
Johnny,

Wise words. Wise words, indeed. Our concerns are "temporal", for sure. And it does become apparent, after a spell, that there are those for whom our temporal "doom" is both a boon and a boom. And that you just gotta keep such folks outta your bayou if you're gonna pursue the important things in this life .

P.S.

Mr. Miller,

Isn't it amazing what one's avatar does for the perception of one's posts.

Matt,
You are right! Tell me if I am smiling or not.
Ray

Ray,

Can't tell. But I can tell you that I'm much less freaked-out reading your posts looking at the lovely Mona Lisa rather than that menacing mime.

Thanks.

This message has been edited. Last edited by: Matt Reed,

All this Avitar talk coming from Matt Reed who has the coolest looking Avitar available on the forum.

Why, thank you, Andrew. Very kind of you to say. I flirted briefly, last week, with a trans-gender look to make a point to brother Ray. But I was freaking even myself out. Brother Ray, on the other hand, seems to have taken my point and run with it.