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New Blog on Rapanos Commerce Clause Case:
In anticipation of the Supreme Court issuing its decision in the Rapanos case, Tim Sandefur (of Positive Liberty blog) and the Pacific Legal Foundation for whom he works has set up a Rapanos Blog. Pacific represents John and Judith Rapanos. Here is its synopsis of the case:
Since 1988, John and Judith Rapanos have been embroiled in a dispute with the government over federal regulation of remote wetlands on their property. For more than ten years they have had to defend themselves in court against an expansive interpretation of the Clean Water Act the U.S. Supreme Court has never sustained and arguably rejected in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159 (2001) ("SWANCC")--an interpretation that has created a stark conflict among the Courts of Appeals and which raises serious constitutional questions.

As a result of a separate criminal suit, John Rapanos now faces jail time in a federal penitentiary while in this civil case both he and his wife are subject to fines and mitigation fees totaling several million dollars. The Rapanos are accused of filling wetlands--shallow depressions--on their property without a federal permit in purported violation of section 404(a) of the Clean Water Act.
One of the articles about the case to which it links is by our own Jonathan Adler: Supreme Clean Water Day. Here is his summary of the issues in the case:
The issues raised by Rapanos and the Carabells are hardly new. The precise scope of federal authority to regulate "navigable waters of the United States" has been contested since the CWA was enacted in 1970. Initially, the U.S. Army Corps of Engineers denied the law applied to wetlands, but environmentalists sued and the Army Corps changed its mind. Some years later, the Supreme Court upheld the regulation of wetlands adjacent to navigable waters, holding that the CWA covers those wetlands "inseparably bound up with the 'waters' of the United States." The Court considered the scope of "navigable waters" again in 2001, this time finding the federal government had gone too far. In Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), the Court rejected the federal government's claim that the presence of migratory birds allowed the Army Corps to regulate isolated ponds lacking any hydrological connection to navigable waters.

The Carabells and Rapanos argue that SWANCC is proof the federal government lacks the authority to regulate their lands. It is one thing to regulate wetlands directly adjacent to navigable waters, they claim, quite another to control every parcel abutting the tributaries of such waters, let alone those lands alongside ditches that drain into the tributaries. The federal government maintains that any hydrological connection is enough to sustain federal jurisdiction, and that without control over adjacent wetlands federal regulators cannot fulfill their mandate to protect the waters of the United States from pollution and other threats. However reasonable this argument may seem, it is a license for federal regulatory control over literally millions of acres of private land.
Depending on its outcome and holding, Rapanos could be decided on statutory grounds, or it could signal whether the aspect of the "New Federalism" that sees some limits on the Commerce Clause power of Comgress is dead or alive.

Scott W. Somerville (mail) (www):
I wrote an amicus brief on the "glancing goose test" in SWANCC... here's hoping the original intent of the Commerce Clause can be revived!
5.17.2006 5:54pm
Hans Bader (mail):
Isn't ALL land hydrologically connected to some waterway?

Water flows downhill, right?

Why not argue that the government's position enables it to regulate substantially ALL land in the country, not just "millions of acres of private land," as Jonathan Adler argues?
5.17.2006 6:00pm
xx:
I'm unclear why you want to view this case as a referendum on new federalism, given that the interstate nexis is much stronger here than in most of the new deal cases, or Lopez for that matter. Interstate riverways are a quintessential interstate issue. And, despite Scalia's obsession with the U.S. claiming that it could regulate "ditches" at oral argument, the position isn't at all absurd. The Erie Canal is a "ditch."

SWANCC seemed to impose a functional limit on the government's ability to expansively construe its power - if the body of water has no practical risk of draining into an interstate bodyway, it can't be regulated. Those aren't the facts here.
5.17.2006 6:32pm
alkali (mail) (www):
Perhaps you all might also be interested in my Manson Blog which addresses an injustice in the state of California. Here's my synopsis of the case:

Since 1968, Charles Manson has been embroiled in a dispute with the state of California over his disagreements with convicted statutory rapist and big-time Hollywood director Roman Polanski. As a result of this dispute, Mr. Manson now faces jail time in a state penitentiary.

(I am being facetious here, but there is such a thing as intellectual honesty. The Carabells want to fill in 15 acres of wetlands -- which, yes, are "shallow depressions" -- to build a shopping center. John Rapanos repeatedly filled in wetlands in violation of very specific cease-and desist orders. They may ultimately be in the right, but you can't fairly summarize these cases without including those kinds of facts.)
5.17.2006 6:34pm
Freder Frederson (mail):
Why not argue that the government's position enables it to regulate substantially ALL land in the country, not just "millions of acres of private land," as Jonathan Adler argues?

Actually it doesn't, there are huge sections of the West that are not "navigable". The strict definition of navigable for Interstate Commerce purposes is commercially navigable, so the waters have to be hydrogologically connected to a commercially navigable waterway. I used to work emergency response actions for EPA and every time we had a CWA action we had to trace the spill to a commercially navigable waterway, not just something you could float a canoe on.

Since the days of the Rivers and Harbors Act of 1898 (this country's first attempt at environmental regulation), it has been realized that just regulating pollution in major waterways is useless. Preservation of wetlands, even on private property, is a classic example of the tragedy of the commons and a perfect example of why the clarion call of libertarians that "private parties know best how to take care of private property" is nonsense.
5.17.2006 6:48pm
JunkYardLawDog (mail):
How does putting non-contaminated dirt in a depression pollute water in a waterway that might get rainwater runoff?

The fact is these cases are NOT about keeping waterways either navigable or clean/pure. They are about a bunch of environmental zealots who influence the federal bureaucracy and get all sweaty over the thought of anybody actually owning a piece of land with all the rights attributable to ownership. Its about some zealot who use the argument that SWAMPS must be preserved not because they care about swamps or cat tails or polluted mosquito infested swamp water. What they really care about is that somebody else who invested in the land might actually make a profit by developing it or that entrepreneurs might actually sell something at a profit in stores built on top of what used to be called old swamp land.

Says the "Dog"
5.17.2006 7:01pm
Freder Frederson (mail):
Its about some zealot who use the argument that SWAMPS must be preserved not because they care about swamps or cat tails or polluted mosquito infested swamp water.

You really are a parody, aren't you? But just in case you really do think that swamps are useless (which means that you have had your head up your butt for at least the last forty years--which must make it very hard to type) let me enlighten you.

Wetlands (which encompass Swamps, marshes and intermittent wetlands) are a vital part of both the dry land and aquatic ecosystems. They are the natural filtration system for waterways, lakes and the oceans. They are the breeding grounds and provide shelter for many of our fisheries and the vast majority of our shellfish industry and are an important source of lumber. They are also important for migratory birds, so even if your only reason for wanting to preserve wetlands is so you can kill migratory waterfowl, that should be reason enough to want the federal government to protect wetlands.

They also act as storage basin for stormwater. So if you fill in wetlands on your property, there is a good chance you are going flood your neighbor's land. Without comprehensive flood planning--which is at threat if the Rapanos win this case, then the damage caused by flooding like we saw this week in the northeast or last summer after Katrina will increase exponentially.
5.17.2006 7:24pm
alkali (mail) (www):
JunkYardLawDog asks Dr. Science:

How does putting non-contaminated dirt in a depression pollute water in a waterway that might get rainwater runoff?

Glad you asked, "Dog."

The flow of runoff water toward a waterway is slowed by the wetland, causing pollutant-bearing sediment in the water in the water to settle out into the wetland before it reaches the waterway. (Bacteria, plants, etc., in the wetlands degrade many of those pollutants. )

Destroying the wetland by filling it causes the pollutants that otherwise would be captured and degraded in the wetland to enter the waterway.
5.17.2006 7:25pm
Steve:
It's certainly possible to have an intelligent discussion about the costs and benefits of wetlands preservation, as the last two comments demonstrate. But really, isn't it a tragic signifier of the state of our political discourse to see someone actually arguing that liberals are only in favor of saving wetlands because they hate watching anyone own private property or make a profit? Doesn't it kind of make you sad for America to see that people actually believe in such caricatures?
5.17.2006 7:46pm
JunkYardLawDog (mail):
Freder,

Not all swamps are useless just most of them, especially the ones landlocked or next to the proverbial ditch.

Alkali, thanks for the explanation. I understand what you are saying but find it difficult to believe that in all cases water passing over clean dirt becomes so dirty that it gets cleaned when it comes into contact with the far more dirty brackish and polluted swamp water.

As to water retainage for storm and sewer control, that's part of standard zoning and planning and development, it neither takes the federal government or environmental whackos to see to it that development is orderly and provides for proper water runoff and water retainage areas that pond during heavy rain and periods of water runoff.

Steve, isn't it sad that there are some people who fail to recognize the socialist/communist takeover of the environmental movement in this country.

Says the "Dog"
5.17.2006 7:55pm
Sandy007:
Steve:

isn't it a tragic signifier of the state of our political discourse to see someone actually arguing that liberals are only in favor of saving wetlands because they hate watching anyone own private property or make a profit?

He said "environmental zealots", not "liberals". There's a difference.
5.17.2006 7:58pm
Steve:
I'm sorry, is it truly the case that the only people who are in favor of wetlands preservation are a few extremist wackos?
5.17.2006 8:21pm
Tim Dowling (mail):
Randy and Jonathan hardly do justice to the bold and creative lawyering by Pacific Legal Foundation in the Rapanos case. PLF's position is that federal authority under the Clean Water Act is strictly limited to actually navigable waters and (per the Riverside Bayview case) wetlands immediately adjacent to those actually navigable waters. On this reading, as Justice Souter noted at argument, EPA and the Corps have no authority to regulate the discharge poison into non-navigable tributaries of our navigable lakes and rivers. It really quite a remarkable position, more restrictive than the view of federal authority that prevailed at the enactment of the Rivers &Harbors Act of 1899, which prohibited the discharge of refuse matter "into any navigable water of the United States, or into any tributary of any navigable water from which the same shall float or be washed into such navigable water."

In 1972 Congress amended the Clean Water Act to expand its reach from "navigable waters" to all "waters of the United States." As Solicitor General Clement has argued, "to construe that jurisdictional language as excluding tributaries would be to conclude that Congress's effort to broaden the scope of federal protection for the Nation's water resources actually narrowed the scope of that protection."

As for the so-called "New Federalism," one might ask why State pollution control officials overwhelmingly support the United States' position.
5.17.2006 8:50pm
Freder Frederson (mail):
As to water retainage for storm and sewer control, that's part of standard zoning and planning and development, it neither takes the federal government or environmental whackos to see to it that development is orderly and provides for proper water runoff and water retainage areas that pond during heavy rain and periods of water runoff.

This of course is nonsense, since flood control and drainage decisions made in, say Denver, Billings, Minneapolis, or Pittsburgh may have a devastating effect on New Orleans, as Katrina so amply demonstrated. If you think pollution and flood control are a merely local problem you are seriously deluded.
5.17.2006 9:04pm
TJIT (mail):
Freder Frederson,

You had a couple of comments.

"You really are a parody, aren't you? But just in case you really do think that swamps are useless (which means that you have had your head up your butt for at least the last forty years--which must make it very hard to type) let me enlighten you."

and

"Preservation of wetlands, even on private property, is a classic example of the tragedy of the commons and a perfect example of why the clarion call of libertarians that "private parties know best how to take care of private property" is nonsense."

I strive to be civil in these exchanges, however your snarky first comment combined with your nonsensical second comment put me in the unfortunate position of having to.

1. Inform you that your are ignorant to the point of being a menace to yourself. Perhaps this is just anoxia related to having your cranium in a cavity that it should not be in.

2. In the hopes of enlightening you and preventing you from looking so ignorant in the future I urge you to learn and remember these key points.

A. Wetlands are important.

B. The federal government and the Army Corps of engineers with their canals, drainage projects, levees, dams, flood insurance, ag subsidies, and a myriad of other programs have caused more wetland destruction then private individuals ever could.

If there had been more private land and less federal government action we would have far more wetlands today. Not a clarion call just the cold, hard facts.

Cheers,

TJIT
5.17.2006 10:12pm
Francis:
TJIT:

it appears to me that your argument is basically: "damn those politicians, for responding to the voters."

when the Bureau of Reclamation went on a close to 100 year dam-building spree across the West, were the voters complaining?

when the ACOE turned the great rivers of the mid-west into vast floating highways, were voters screaming in protest?

uh, no.

so now the federal agencies are just beginning to understand the massive ecological repercussions of their earlier actions and are starting to to assert jurisdiction over land for environmentally beneficial reasons, which ultimately turn into commercially beneficial reasons.

those are the cold hard facts.

don't like the policies of the Department of Interior? make smarter voters.
5.17.2006 10:27pm
logicnazi (mail) (www):
I don't see why we don't just pass laws that compensate individuals for the fair market loss these regulations inflict.

I'm not sure of the supreme court cases on point but I'm sympathetic to the idea that preventing someone from filling in shallow depressions on their property constitutes a taking. I suspect the constitution does not require it but fairness demands our statutes distingush laws preventing dumping of toxic waste and laws which prevent someone from engaging in traditionally accepted use of that property.

Don't get me wrong I'm a big believer in enviornmental regulation. However, it seems wrong to force some individuals to disproportionatly bear the cost of this regulation. It is one thing if they bear the cost just because they can't dump toxic waste another if they are suddenly prevented from doing the same things with their land that would be acceptable for someone else to do.

Either we think that saving wetlands and migratory birds is important enough that we are willing to pay the cost as a country or we don't. If we don't it seems grossly unfair to make some people pay this cost because we have more votes.

I'm for raising taxes and compensating these people.
5.17.2006 10:34pm
logicnazi (mail) (www):
A bit more on topic.

It is likely that migratory birds have commercial value. Do they therefore count as interstate commerce or does commerce need to be something done by people?
5.17.2006 10:35pm
therut:
Did I read that the FEDS can control a pound on someones private property. Oh how I wish there was a law that the FEDS have to send each resident a copy of all USSC rulings like they let us know how awful the SS system is once a year. I know many small cattle owners who would be amazed the FEDS has the POWER to tell him or her how to use the ponds the cattle drink out of. I would also really be angry if they think they control my pond about 20 feet from my front door. I also think alot of the zealots of environmentalist movement is really just antcapitalist and anti-private. Not their protery of coarse. Just like the antglobolist movement is also anti-capitalist. If you ever see some of these peoples talks at lefty Universities it is apparent.
5.17.2006 10:42pm
JunkYardLawDog (mail):
Freder Said:

This of course is nonsense, since flood control and drainage decisions made in, say Denver, Billings, Minneapolis, or Pittsburgh may have a devastating effect on New Orleans, as Katrina so amply demonstrated. If you think pollution and flood control are a merely local problem you are seriously deluded.

If you think building a 15000 sq ft strip mall in Montana is responsible for the graft and corruption in Louisiana that took flood control money to pay for everything BUT flood control, then you would need to raise your cognitive abilities up significantly to reach the level of deluded.

Says the "Dog"
5.17.2006 10:52pm
Freder Frederson (mail):
If you think building a 15000 sq ft strip mall in Montana is responsible for the graft and corruption in Louisiana that took flood control money to pay for everything BUT flood control, then you would need to raise your cognitive abilities up significantly to reach the level of deluded.

Tragedy of the Commons, google it.
5.17.2006 11:32pm
Nunzio (mail):
Logicnazi,

As for gov't compensation, the gov't would have to compensate the would-be mall developer here if they passed the regulations after he bought the proper (assuming that the regulations made all or most of the property economically worthless).

Mr. Rapanos here, as I understand it, bought the land well after these "we can regulate land that's hyrdologically connected to navigable waterways" interpretive regs were in place, so he was rolling the dice quite a bit thinking he could buy the land, go to court and (1) say the interpretive regs are beyond the power of the agency that passed them under the statute and especially (2) say that the statute and regs are beyond Congress' Commerce Clause power.

Basically, Mr. Rapanos, instead of buying the land as a real-estate investment, should have taken all the money, gone to a craps table in Vegas and put it all down on a hard eight. He gets what he deserves
5.18.2006 12:20am
Lev:

Freder Frederson (mail): - flood control and drainage decisions made in, say Denver, Billings, Minneapolis, or Pittsburgh may have a devastating effect on New Orleans, as Katrina so amply demonstrated.


How exactly did Katrina demonstrate that?
5.18.2006 12:29am
Beerslurpy (mail) (www):
I love the abundance of flawed and irrelevant arguments here, especially Freder's reliance on the argument of hydrological connection between navigable waterways and private property that isnt connected to interstate commerce. Great argument, except this is not contested by either party in Rapanos.

Neither Rapanos nor the government contend that any land with hydrological connection to a nagivable waterway would be outside the scope of regulation, and the court (in oral arguments) seemed unwilling to entertain such an theory. However, neither party asserts any hydrological connection between the ditch in this case and any navigable waterway. The government is attempting to proceed on different grounds, which is where the controvery arises.

The government wishes to proceed on the theory that mere physical adjacency is adequate to substitute for a provable hydrological connection. This absurd theory asserts that if two areas are merely nearby, this can substitute for a hydrological connection between the areas. Rapanos, IMO, rightly challenges this. The government simply can't show a hydrological connection because there isnt one. Rapanos went through numerous state and local inspections and they found that there was no environmental impact at all from his ditches or his filling of the puddles on his land. The Court should reject the government's argument.
5.18.2006 9:32am
Tim Dowling (mail):
Beerslurpy -- There are so many factual errors in your post that it's hard to know where to begin. It is uncontested that the wetlands at all three sites at issue in Rapanos have a hydrological connection to navigable waters through non-navigable tributaries. For example, the wetlands at the Pine River site have a direct hydro connection to the (non-navigable) Pine River, which flows into Lake Huron. The Rapanos/PLF position is that non-navigable tributaries don't count, and that the government can't rely on non-navigable hydro connections to establish jurisdiction under the Clean Water Act. PLF acknowledges that because the same jurisdictional terms apply to the statutory provisions that prevent the discharge of pollutants, on their reading the Act prohibits pollution discharges into Lake Huron, but not into the hundreds of non-navigable rivers, streams, and creeks that feed into Lake Huron.

Rapanos's own consultant told him it was illegal to fill these wetlands, and when the consultant refused to destroy the report that contain this conclusion as requested by Rapanos, Rapanos fired him. The Michigan Department of Natural Resources issued cease-and-desist orders, which Rapanos ignored. It is simply untrue for you to say that State and local officials concluded that his destruction of more than 50 acres of wetlands at the three sites caused no environmental harm. The State of Michigan joined 34 other States in an amicus brief supporting the United States precisely because of the environmental damage caused by Rapanos. The trial court found that the wetlands at all three sites have a hydro connection, through non-navigable tributaries, to Lake Huron, and that their destruction impaired water quality and flood control.
5.18.2006 10:11am
Freder Frederson (mail):
How exactly did Katrina demonstrate that?

New Orleans sits near the culmination of the largest river basin on the face of the earth (in terms of area drained). The Mississippi/Ohio/Missouri system has been vital to commerce and trade since there have been people on the continent. And ever since Europeans arrived, there have been efforts to control flooding and improve navigation on the river by building levees, locks, dams and lakes. After the floods of 1927, the efforts to control flooding became paramount and massive.

All of the flood control project decisions, from the Rocky Mountains, to nearly the Canadian border, to the Appalachain, meant that the silt that maintained and replenished the wetlands at the mouth of the Mississippi River was significantly reduced. Consequently, over the last 80 years, New Orleans has lost much of the natural barrier that once protected it from hurricane storm surges. New Orleans used to be 40 miles inland, now its southeast corner sits on an inlet of the Gulf of Mexico. Look at a map, there is a bay off the Gulf of Mexico southeast of New Orleans labelled Lake Bourgne. 80 years ago Lake Bourgne was a lake separated from the Gulf by wetlands. If those wetlands were still there, they would have protected New Orleans from the hurricane storm surges that flooded the city in Katrina. This is not guess or some whacked out environmental theory, but a proven fact. Levees in St. Bernard Parish that were protected by as little as 1/2 mile of wetlands (especially mature cypress swamps) were not overtopped or breached while the same levee just a few miles away that faced the storm surge with no wetland buffer were completely destroyed.
5.18.2006 10:56am
Hans Bader (mail):
Why isn't ALL land subject to regulation under the government's "hydrological connection" theory, not just most of it?

Under Lopez and Morrison there must be at least something beyond federal control for the government's position to be tenable, but I don't see what land isn't under the government's hydrological connection theory.

Since water flows downhill, all water will ultimately flow downhill, either directly into a navigable water way, or first into a non-navigable waterway, which will then flow into a navigable water way.

Thus, all the land in the United States that produces any water that flows downhill (which is to say, probably all land in the United States) will be subject to regulation as a wetland.

That defines even dry desert land as a wetland.

I'm all in favor of saving wetlands, by regulation if need be, but how can the government's position make sense to anyone?

Why isn't my house, a typical, long-settled, urban-type dwelling, a wetland since water flows from my backyard into a non-navigable creek which then flows into the Potomac?

No one other than a lawyer (who lacks common sense) would deem my house a wetland.

But apparently the Government's lawyers would, under their theory of the case.
5.18.2006 1:08pm
Reed Hopper (mail):
Tim stated:

"PLF's position is ... really quite a remarkable position, more restrictive than the view of federal authority that prevailed at the enactment of the Rivers &Harbors Act of 1899, which prohibited the discharge of refuse matter "into any navigable water of the United States, or into any tributary of any navigable water from which the same shall float or be washed into such navigable water.""

Actually, PLF's position is neither "remarkable" nor more restrictive than the Rivers and Harbors Act. PLF's position is that under the Clean Water Act Congress intended to regulate the discharge of any pollutant WHEREEVR IT OCCURS (even into nonnavigable tributaries) SO LONG AS IT ACTUALLY REACHES A NAVIGABLE WATER, just as it did in the Rivers and Harbors Act. (See Rapanos Reply brief at p. 10) Afteral, the CWA and the RHA both use the same limiting language--"navigable waters."

What is remarkable, however, is the government position in Rapanos that "neither the directness nor the substantiality of a tributary's connection to traditional naviagble waters is relevant to the juridictional inquiry." This allows the Corps to regulate virtually anywhere water flows and prompted Justice Scalia to remark at oral argument that federal regulation of a dry storm drain was absurd. Now that's remarkable!
5.18.2006 2:18pm
Freder Frederson (mail):
That defines even dry desert land as a wetland.

No, because there is a specific technical definition of "wetland", and while it might be a complicated scientific definition and you may not like it, it does exist (a wetland is defined by the type of vegetation, how often and for what duration it holds standing water, and a whole laundry list of other factors). So all land is not wetlands. And all wetlands are not covered by the CWA. As I pointed out, there are large areas of the west where wetlands do not drain into a navigable waterway (as far as the Federal Government is concerned the Great Salt Lake is not a "navigable waterway", so its entire basin is covered under special legislation). Even in the east, there are Kettle lakes that are hydrologically separated from the prevailing drainage patterns. These mini-ecosystems, which generally just cover a couple square miles or even just a few acres (usually in the Moraine areas left by the retreat of the glaciers by the last iceage) are not covered by the CWA.

That doesn't mean your backyard isn't covered by the CWA. If a tanker truck were to spill its load of gasoline in your yard, the cleanup would be under the auspices of the CWA and it is the only law that mandates that the persons responsible fully remediate the damage caused to your property. If the Rapanos prevail in this case, the persons responsible for that spill could literally walk away from that spill and tell you and your neighbors: "hey tough luck, you clean up this mess, no one can force us to clean it up. You don't like it, sue us." Think about that before you cheer on the Rapanos.
5.18.2006 2:48pm
Tim Dowling (mail):
Hi Reed—

Under the position articulated in your briefs, the federal government could not act until it could prove that the poison has reached a navigable water. You leave unexplained just how an enforcement program would work where the feds remain powerless until the poison actually travels the considerable distance downstream on its way to the navigable river. Nor do you explain how the feds could show where the poison originated. If you don't view this as more restrictive than the 1899 Act, we'll have to agree to disagree on that one, but regardless of how it compares to 1899, I doubt you'll get a single vote on the court for that reading. You fail to grapple with a central flaw in your theory, highlighted by the SG's brief and many amici, which is that the text, structure and history of 1972 amendments make clear that they are designed to expand jurisdiction to all "waters of the United States."

Cordially, Tim
5.18.2006 3:12pm
Reed Hopper (mail):
Thanks for the respone, Tim:

"Under the position articulated in your briefs, the federal government could not act until it could prove that the poison has reached a navigable water. You leave unexplained just how an enforcement program would work where the feds remain powerless until the poison actually travels the considerable distance downstream on its way to the navigable river. Nor do you explain how the feds could show where the poison originated."

Response: This, of course, is exactly the situation under the Rivers and Harbors Act and the federal government has had more than 100 years of experience with it. This is also the situation when someone discharges a pollutant without a permit--the agency must discover and track down the discharge. When I served as an Environmental Protection Officer in the U.S. Coast Guard, we were very good at tracing pollution to its source. Also, what you have left unsaid is the simple fact that the discharge of "poison" into nonnavigable waters is prohibited by every state in the Union. In the first section of the Clean Water Act, Congress stated its objective was to protect the "Nation's waters." After using the term "Nations' waters" which would, on its face, encompass all waters in the U.S., Congress said the goal was to eliminate the discharge of pollutants "into the navigable waters." The term "navigable waters" is clearly a subset of the "Nation's waters" and has had the settled meaning of traditional navigable waters for over 200 years. Of equal importance, in that first section of the Act, Congress stated its clear intent to "recognize, preserve, and protect the primary responsibility and rights of the States to prevent, reduce, and eliminate pollution...." In other words, Congress intended the federal government to regulate downstream in actual navigable waters while the States regulate upstream in the nonnavigable waters. As Justice Scalia mention in the SWANCC oral argument, this is a perfectly rationale approach to the problem.
___
"You fail to grapple with a central flaw in your theory, highlighted by the SG's brief and many amici, which is that the text, structure and history of 1972 amendments make clear that they are designed to expand jurisdiction to all "waters of the United States.""

Response: It is the SG and Amici who "fail to grapple" with the fact that the Supreme Court already dealt with the "text, structure and history" of the Ac in SWANCC and determined conclusively: (1) that the term "navigable waters" does not mean "all waters of the United States" but only "those waters of the United States" which are capable of use for navigation for interstate commerce; (2) that Congress in the Clean Water Act was asserting nothing more than its commerce power over navigation (i.e. the same power it exercised in the Rivers and Harbors Act); (3) that the term "navigable" has to mean something; (4) that the Act must be read as written and that "ponds and mudflats" are a far cry from "navigable waters" to which the Act by its terms refers; (5) that the government interpretation gets no deference; (6) that Congress did not intend to exercise its full commerce power; (7) that the regulation of all waters in the United States raises serious constitutional questions; and, (8) that the text, structure and history of the Act only show Congress intended to regulate wetlands adjacent to actual navigable waters.

The bottom line is that we take the "extreme" position that Congress meant navigable waters when it used the term "naviagble waters" whereas the government takes the position that Congress meant nonnavigable waters when it used the term "navigable waters."

You are quite right, Tim, when you state we will have to agree to disagree. I am content to leave the decision, as well as the arguments, in the hands of the court.
5.18.2006 4:38pm
David M. Nieporent (www):
That doesn't mean your backyard isn't covered by the CWA. If a tanker truck were to spill its load of gasoline in your yard, the cleanup would be under the auspices of the CWA and it is the only law that mandates that the persons responsible fully remediate the damage caused to your property. If the Rapanos prevail in this case, the persons responsible for that spill could literally walk away from that spill and tell you and your neighbors: "hey tough luck, you clean up this mess, no one can force us to clean it up. You don't like it, sue us." Think about that before you cheer on the Rapanos.
What the heck are you talking about? Leaving aside that, of course you can sue and "force them to clean it up," have you ever heard of the concept of a state? There are fifty of them in the United States. They each have their own governments. They each pass laws. Why on earth do you think that if the federal government is prevented from outlawing a third party from polluting my backyard, that it would suddenly become legal for that third party to do so?
5.18.2006 5:12pm
Freder Frederson (mail):
What the heck are you talking about? Leaving aside that, of course you can sue and "force them to clean it up," have you ever heard of the concept of a state?

Well, I'll tell you how it works in the real world, especially in a state like Virginia (is that where you live?), because I used to work these kind of spills and actually worked one of exactly the kind I described. A tanker truck carrying 7000 gallons of gasoline (just an ordinary truck that delivers gasoline to gas stations) took a corner too fast on a rural highway just south of Atlanta, dumped its entire contents into a ditch along the side of the road and into the yards of three houses. By some miracle, although the truck slid on its side for about 100 yards along the asphalt road and gravel shoulder, it did not spark a fire and the truck driver walked away from the accident.

The accident occurred at about 10:00 pm and the local first responders notified the Ga. EPA and Federal EPA (the regional headquarters are in Atlanta). Both us and the State got to the site about 11:30 pm. The local responders were the sherriff's department and a volunteer fire department with one small used fire engine. Nobody had been able to contact the owner of the truck or the gasoline (since it was FOB at the terminal) and once they did they would inevitably start bickering about who was responsible for cleaning up the spill, while the gasoline quickly evaporated and infiltrated the soil.

Now this ditch on the side of the road was dry, and the nearest navigable waterway was about 100 miles away on the Georgia/Alabama border, but because we were certain that if you put gasoline in that ditch it would eventually reach that waterway, we could with confidence tap CWA funds to start the cleanup immediately. Since the EPA has contractors on call 24/7, by 2:00 am we had a crew there digging up contaminated soil and hauling it off to a landfill, significantly reducing the cost and potentianal damage of waiting around for the state or the people who actually caused the spill to get their act together. In this case it was especially important because the houses this spill occurred in front of drew their water from shallow wells, so there was a significant danger of contamination of their wells.

EPA would of course go back and fine the owner of the tanker to recover the cost of the cleanup. But this is the kind of response that the CWA enables and pays for. The states can't or won't always do it. Besides, if it is wrong for the Federal Government to have such laws, why is it legitimate for the states to have them? The responsible parties will often bicker about who has to pay before they ever put a shovel to soil when often time is of the essence. So before you go badmouthing the big, bad, government, remember that sometimes that they really do help the little guy.
5.18.2006 6:35pm
Beerslurpy (mail) (www):
I was at work so I couldnt respond but here is my response to Tim.

First off, you are ignoring that Rapanos was merged with Carabell, where the adjacency doctrine is directly stated. That issue was covered multiple times regarding the facts of Rapanos during oral arguments.

Also, and more importantly, you are misrepresenting the facts of Rapanos. There never was an in fact hydrological connection between his "wetlands" and any navigable waterway, nor any tributary. His land was a cornfield with several uneven areas that collected water during heavy rain. His filling of the depressions in the land (so he could erect buildings) might have created a possible future hydrological connection because the rainwater would have ended up in the storm drain instead instead of puddling on the land. However, the actual offending "discharge" is the fill soil being discharged into his "wetlands" as he removes the puddling areas of his property. His fields are regulated because they are adjacent to the storm drain though not connected in fact. Thus, by the government's logic, discharging dirt into those fields counts as a discharge into a regulated wetland. IMO, insane.

This cases raises a lot of interesting questions for the layman. What are wetlands? Any land that develops standing water during a rainstorm? Is there anything that isnt a wetland by this logic?

But surely not all wetlands are connected to interstate waters, so where do we draw the line? When the agency gets to decide the facts and make the rules, they seem to have no problem including every wetland as being a part of the interstate system. But is this fair? More importantly, is it consistent with the actual text of the CWA? "Navigable interstate waterways and adjacent wetlands" has come a long way baby.
5.19.2006 1:29am
Beerslurpy (mail) (www):

Besides, if it is wrong for the Federal Government to have such laws, why is it legitimate for the states to have them?

Ever hear of the 10th amendment? It wasnt repealed, you know.
5.19.2006 1:31am
David M. Nieporent (www):
Besides, if it is wrong for the Federal Government to have such laws, why is it legitimate for the states to have them?
Have you ever heard of a little thing some of us like to call "federalism"?

You do understand that some powers are reserved to the states, right? That the Constitution does not create a federal government with general police power, right?
5.19.2006 1:35am
Beerslurpy (mail) (www):
Alright, sorry, I reread the oral arguments and I misremembered which attornies were speaking when.

The thing I got wrong was that Rapanos was in fact arguing that the discharge of dirt into the field (to fill up the holes) isnt regulable because the fill dirt will never reach a navigable interstate waterway. The government essentially argues that "dirt = discharge" + "occaisional rainwater = connection to interstate waterway" ergo "dirt in field = discharge of chemicals into waterway". Which I still think is profoundly flawed reasoning on the part of the government.

The other sad thing is that this has almost nothing to do with the environment and everything to do with an overreaching government flexing its muscles.
5.19.2006 1:48am