Supreme Court Rules on CWA

[Gone4Day]

Saw this story in the NYT: Ruling Foils EPA

This looks like really bad news for PA, especially with all the drilling going on. They supremes seem to have a conservative view on what is considered a navigable waterway, which is also troubling.

Hopefully, they can come up with a legislative fix quickly. before too much damage is done.

 

[Chaz]

How can we make the Dumbsaa's at the Subpar court understand that ALL WATER IS CONNECTED? Sheesh isn't it basic science?

 

[Maurice]

A possible silver lining for access on this issue would be if they expand and declare the recognized list of navagible rivers.

Of course pollution trumps access but in the legal wrangling, there could be an access benefit derived from all this.

As it stands though, its an ugly state of affairs.

 

[pcray1231]

But the two decisions suggested that waterways that are entirely within one state, creeks that sometimes go dry, and lakes unconnected to larger water systems may not be “navigable waters” and are therefore not covered by the act.

It's that "entirely within one state" thing that gets to me, I've never seen navigable interpreted that way. Or does that simply mean they must be interstate to fall under federal jurisdiction, and rivers within a state can be navigable but are wholely under state control?

But yeah, an ugly state of affairs all around. This ruling is apparantly several years old, anyone have a link to the actual opinion (I never trust the news to get the story right)? And it looks like they've been trying to write a new law which will cover what the old one did, but they are getting hung up on how to replace the word "navigable" without making it go too far...

 

[vern]

Removing the "navigable" portion of the law through amendment would be the simplest, no?

I suspect the legacy of the "W" fronted political leadership will be around to haunt environmental concerns for years.

Also, be careful about creating lists Maurice, especially for navigable waters. Lists can easily become interpreted as fact. Such a list can leave many waters out.

Perhaps instead of a constitutional convention for PA, what we need is a public access convention to make clear what is and what is not part of the "commonwealth".

 

[pcray1231]

Removing the "navigable" portion of the law through amendment would be the simplest, no?

Yes, but then takes the law too far. Then you have to define waterway. If a rain drop hits a piece of cement and then flows to the side, is that a waterway? Taking it this far would clearly mean that, say, spitting some tobacco juice is a violation and the DEP could use the law to run you down.

I agree that is not the intention, but laws need to be written so that they can't be abused. The vast majority agree with what the level of protection should be, which is similar to what the old law granted. Thats a good thing, there's common ground and thus a chance to do something. But you have to have some terminology between "all waterways" and "navigable" waterways, and I don't have a good answer to that.

 

[vern]

For defining "waterway", I would probably defer to the parameters used currently by the state to report mileage.

Though seemingly a static definition, it is not. For example, the mileage of streams in the state changes over time.

Over the course of field investigations, which may only occur once every 10 years, the length of a stream can easily vary, since the parameters to meet the state's definition may or may not be met depending on the hydrologic cycle.

The stream bed of a small tributary to a larger flow may be running a quarter mile longer or more during wet periods than during dry periods.

There's also the aquifer withdrawals from new vacation properties and permanent residences that may have been installed since the previous survey, and those diminish flows.

The test for determining stream length, as used by DEP, might be a good place to start for determining waterway.

But I do understand the problem.

In the Lebanon area local leaders decided that, as a result of Alcoa closing (and its formerly large block of surrounding properties that were previously all agricultural/woodland/wetland) it would be appropriate for zoning for the freed-up property to create an industrial park.

It sits on the main, mostly subterranean flow of the Quittapahilla.

In my mind that's foolishness.

But as a side benefit, after the stream re-emerges, a visible wetland (that was created from long previous development and road construction) was enhanced and is now an educational facility. If the new industries pollute the wetland should show it.

So, I agree it's a very difficult problem to nail down to a static, easily argued black & white issue for legal challenge and bureaucratic/government management.

But some day, we will have to face the question closely and turn a whiter shade of pale ...

 

[FarmerDave]

If memory serves me, this "ruling" was a few years back.

And the situation is bad enough without the NYT's liberal slant, and yes, it is loaded with liberal slant.

I'm all for protecting these smaller streams and freestanding wetlands (which are now lakes according to NYT). These wetlands, recharge the aquifers. Polute them, and you polute the aquifer.

I remembr signing a petition on this a few years ago when this was coming to a head.

The problem isn't really the Supreme Court ruling. Blaming them is shooting the messenger.

The problem is the wording of the 72 act was poor. The courts don't make the laws, but they are sometimes asked to make rulings when a law is challenged. sometimes we are better off if they don't make a ruling. This might be one of those cases. We would all like or cake and eat it too, but the SC justices are not supposed to be activists. If you want a law with teeth, then put the teeth in it when writing the law. Don't expect the courts to add the teeth down the road. Not their job.

 

[skeeter]

The ruling I believe you are referring to was Rapanos vs the US.
Here is a link that has almost all the information you care to know in a fairly summarized fashion.

I don't believe there was any "slant" to that article. Maybe, far fetched with the whole toxic dumping point of view, but the truth is there are wide-ranging impacts to some of our most unique resources. Being in the industry, I can vouch that since that decision, the EPA, ACOE, even state agencies have a difficult time regulating many of the isolated hydrological resources that the Rapanos decision has determined not of value. There is criteria for jurisdictionally determining these areas but unfortunately the agencies don't have the support of the law to even make a final decision. So what happens is that the agencies can't challenge it in the courts and the regulatory statuses of these areas are determined not jurisdictional. It is unfortunately very easy for the developer or companies challenge the jurisdiction of these areas and have the agency drop the case because the law says other wise when the truth is we all know it is connected by a term we all learned in 3th grade science-GROUNDWATER.

Vern, here is a link we use to delineate a questionable area.
And here is a link to how all jurisdicational waters of the US and the state are determined.

 

[FarmerDave]

Skeeter, I believe that is the case I was thinkin gof at least.

What i mean by "slant" was all the exaberations and "far fetched" stuff in the NYT article. Of course I could be wrong. But here is another example of what I saw as a gross exageration, or outright lie. In the article, isolated wetlands were represented as lakes?

Anyway...

Thanks for the links.

I also have to say that you did a much better job of describing the situation than the NYT article, and in much fewer words.

The whole thing does suck.

But here is why I hate to see these kinds of exagerations. Actually, I like to see them when I am on the other side, but not when I am on the same side. It is much harder to fight the truth than it is to fight the far fetched and exagerations.

 

[skeeter]

Yeah I agree, the farfetchedness of the article did not get the point across. The truth about the ruling is that there is now a very serious treat to the existence of these unique hydrological systems. Maybe the article should of been about how these isolated systems provide unique habitat for rare, sometimes endangered flora, fauna, and wildlife. However, maybe NYT thought the shock and awe type approach would actually motivate people to understand the "worst case scenario" (how it affects me).

Thanks.

 

[FarmerDave]

It was brought to my attention 3 or 4 years ago by a coworker who is big into environmental as well as animal rights causes. I think I signed some kind of petition back then.

I'm all for protecting these places.

I have an area on my property that would probably meet the definition of an isolated wetland. It is protected only by me. I could probably drain it and farm it if I wanted. It would give me a few more tillable acres. But I chose not to. The state of Ohio has a very poor environmental record, and I am right on a major flyway (migratory birds).

 

[skeeter]

Haha, thanks for not filling in your isolated wetlands!

However, if you did decide to do that and it was prior to 2001, you would be breaking the law under the migratory bird rule . That assertion of jurisdiction of waters of the US was thrown out in the SWANCC decision (2001) which was essentially a catalyst for Rapanos. And your right Ohio is not good with environmental regs but they are striving to be better.

 

[FarmerDave]

skeeter wrote:
Haha, thanks for not filling in your isolated wetlands!

However, if you did decide to do that and it was prior to 2001, you would be breaking the law under the migratory bird rule . That assertion of jurisdiction of waters of the US was thrown out in the SWANCC decision (2001) which was essentially a catalyst for Rapanos. And your right Ohio is not good with environmental regs but they are striving to be better.

I didn't own the farm back then.;-)

I plan to some day put a couple acre lake in the middle of that for the waterfowl, and of course for fishing. can a guy really have too many ponds?;-)

 

[Chaz]

All of the more recent SUpreme Courts have been in the habit of "Making Law" rather than looking at the spirit of the law. Somehow we have to take the politics out of the Supreme court.
No Aquifer is isolated, look at how many times some of our limestone streams sink and re-emerge sometimes a long distance away.

 

[FarmerDave]

Chaz wrote:
All of the more recent SUpreme Courts have been in the habit of "Making Law" rather than looking at the spirit of the law.

Compared to what?

When it comes to right or wrong thing to do, I may not agree with a lot of the recent supreme court decisions, but I can't agree with you on whether or not they are "making law."