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Clean Water Act and wetland protection regulations further undermined: Part 1: Regulatory agency decisions
By Lee Chowaniec
Jul 3, 2006, 11:19
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The Republican Party has not been the environment’s best friend on both federal and state levels. Waterways and wetlands tend to be considered nothing more than an impediment preventing developers from realizing more profits and municipalities from garnering more tax revenues.

As with environmentalists, the general public is not opposed to development when a project does not compromise the value and functionality of waterways, streams, wetlands and their adjacent areas. Federal and state regulations have been instated to protect an environment that controls flooding and drainage issues and the ecosystem.

Under the leadership of the Bush administration and through the efforts of Republican State Senator Joseph Bruno to prevent legislation to from getting to the floor that would further protect wetlands, wetland regulation policies have been undermined.

Federal jurisdiction (Army Corps of Engineers)

If you were of the opinion that the recent Supreme Court decision favored wetland protection by reversal of their 2001 SWANCC (Solid Waste Agency of Northern Cook County) decision, think again.

In 2001, the Supreme Court determined that the Corps’ authority under the Clean Water Act (CWA) did not extend to ‘isolated wetlands” if they are not adjacent to and/or connected to navigable waters.

In reviewing the recent Court decision, Emory College Law School Professor William Buzbee* declares:

I think some of the initial posts about today’s ruling in Rapanos are inaccurate. First and most importantly, this case resulted in a 4-1-4 split, with a plurality opinion of four Justices (Scalia, Roberts, Thomas and Alito), a Kennedy concurrence in the judgment and his own opinion strongly rejecting the Scalia plurality approach, a brief concurring opinion by CJ Roberts acknowledging that there is no Court opinion, but stating that in this situation Kennedy’s opinion is key (via a cite to the Marks case), and then the four Justice dissent (Stevens, Souter, Ginsburg, Breyer).

The Scalia plurality is remarkable in the revolution it would achieve, but does not command a Supreme Court majority. The plurality would toss aside over 30 years of consistent regulatory treatment by both Republican and Democratic administrations, would reject the Army Corp’s approach in its regulations and as applied here, and would question the limit of federal power under the Commerce Clause and due to its view that this battle over “waters of the United States” unduly tramples on state and local land use authority.

Most significantly, the approach that it generates, based mainly on its own views of policy and parsing of a 1954 dictionary, would preclude federal protections of “waters” that are intermittent or ephemeral, and not permanent, standing or continuously flowing.

This remarkable view would, under the plurality’s explicit view, strike down most of the longstanding Army Corps regulations. But this is not a majority view. Justice Kennedy plus the four dissenters reject the plurality view, differing primarily in their
degree of disagreement and whether anything needs to be remanded for reconsideration.

Justice Kennedy rejects just about everything in the plurality opinion. Instead, he calls for a remand for reconsideration of his expanded articulation of what he calls a “significant nexus” test, language he and the Appellants stressed from language in the SWANCC case.

Under his view, to be addressed on remand, the Corps can for now on a case- by- case basis look at the permit application to see if federal jurisdiction exists. He explicitly calls for deference to the Corps, says that “waters” protected are more than just waters
that are navigable, and rejects the plurality claim that only permanent, standing or flowing waters are federally protected.

This all adds up to added administrative burden and probably more skirmishing in permitting and permit appeals, but this fragmented set of opinions adds up to much more a win for those seeking protection of America’s waters than industry and developers who saw in Rapanos a possibility of substantial weakening of the Clean Water Act.

*Buzbee co-authored an amicus brief for a bipartisan group of four former EPA Administrators in this case.

Congressional Intervention

Even within Republican Congressional ranks there is uncertainty about the Supreme Court decision on the Clean Water Act and its impacts. There is belief that the confusing decision can be made clear is through Congressional intervention.

The court issued what amounted to three opinions. Four conservatives led by Justice Antonin Scalia said the law protected only "permanent, standing or continuously flowing" water bodies, a judgment that would have exposed most wetlands and all seasonal streams — nearly 60 percent of the country's waters, by the government's own estimates — to dredging, dumping and development.

A liberal four-justice bloc argued the opposite, that the act protected all the nation's waters — a view that has been endorsed by every regulatory authority except President Bush's Environmental Protection Agency since the act's inception in 1972. Justice Anthony Kennedy, who said in effect that each case should be judged on whether the water body in question had a “significant nexus” with a navigable waterway, cast the crucial ninth vote.

That saved the country from the blanket destruction of Justice Scalia's reasoning. But it, too, had no solid basis in the act itself and, worse, threatened to open matters up to continuous dispute.

There is a bill in Congress that would quickly resolve the issue. It is called the Clean Water Authority Restoration Act, and its purpose is to remove any ambiguities in the original law and to reassert, in clear terms, the act's intention to protect all the waters of the United States, large and small, permanent or seasonal, navigable or isolated.

This would also clarify things for the E.P.A. and the Army Corps of Engineers, the regulatory agencies charged with carrying out the law. With the law's scope in doubt, neither agency has known quite how to proceed — some developers received permits to dredge and fill wetlands and small streams, some did not. Congress can make sure that from now on the law is squarely on the side of clean water.

State jurisdictional wetlands

The Department of Environmental Conservation (DEC) is the state regulatory agency that has jurisdiction over wetlands 12.4 acres or more in size. In the past several years, the DEC has taken prudent steps to ensure developers follow state wetland regulations and have recently withheld granting SEQR lead agency status to municipalities until they have become satisfied that wetland regulations are adhered to and that mitigations for impacts of significance, when warranted, are required.

The state Assembly has twice passed bills (115-28 on Feb. 2, 2005 and in 2006) that in essence would have created basic state protection for small areas of wetlands, ranging in size from one to 12.4 acres, that the U.S. Supreme Court in 2001 declared exempt from regulation by the federal Army Corps of Engineers.

Twice Republican State Senate Majority Leader Joseph Bruno stopped the Assembly bills from hitting the senate floor. Bruno has repeatedly said he opposes the wetlands plan because it is unfair to landowners who want to make their own decisions about what happens on their property. Nevertheless, environmentalists who work in the capital are outraged and outspoken.

Records obtained by the Times Union show a Bruno family investment, First Grafton Corp., has a history of resisting wetlands restrictions on a 625-acre development site in Grafton in eastern Rensselaer County.

In 1991, Bruno created a stir when his business mowed down forest and wetlands to create a road without any permits. In 1995, state officials warned that extending that road and building homes on at least six planned lots “will impact federally protected wetlands.”

“The fact Sen. Bruno was involved with an enterprise that violated federal wetlands laws helps explain why he’s working hard to stop a bill that would regulate destructive development on New York’s treasured wetlands,” stated John Stouffer, legislative director for the Sierra Club’s Atlantic chapter, in 2005.

Bruno’s stance against the wetlands bill contrasts with his usual support for environmental legislation and issues. In April, he joined Gov. George Pataki and Assembly Speaker Sheldon Silver in signing a memorandum of understanding that makes $30 million available for local communities to develop strategies to clean up and reuse brownfields.

Next; Part 2: Western New York impacts

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