Rapanos pp show

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Published on January 3, 2008

Author: Boyce

Source: authorstream.com

Rapanos v United States:  Rapanos v United States And other court cases that have impacted Section 404. First a little history...:  First a little history... The Clean Water Act was passed by Congress in 1972. It was amended for the last time in 1977. There has been a history of court decisions since. Milestone Timeline:  Milestone Timeline 1972 Clean Water Act passed. 1977 Clean Water Act amended. 1985 Riverside Bayview case. 1990 “No Net Loss” policy created. 1998 “Tulloch Rule” overturned. 1999 West Virginia coal mining case. 2001 SWANCC decision. 2006 Rapanos/Carrabel decision. 1972/1977 CWA creation:  1972/1977 CWA creation Regulated “discharge” into “water of the United States”. Focus of Section 404 was the stopping the massive loss of wetlands throughout the United States. And making sure that the disposal of dredge material was done in a safe manner, without slowing down the creation of ports and harbors. What did Congress mean?:  What did Congress mean? Question soon became what is a 404 regulated “discharge” and what exactly is a “water of the United States.” These questions have been litigated for 20 years and are still being fought in court today. Since the CWA has not been acted upon by Congress since 1977, the “intent” of the writers of Section 404 is the only guidance available to the Corps and the Courts. Milestone Timeline:  Milestone Timeline 1972 Clean Water Act passed. 1977 Clean Water Act amended. 1985 Riverside Bayview case. 1990 “No Net Loss” policy created. 1998 “Tulloch Rule” overturned. 1999 West Virginia coal mining case. 2001 SWANCC decision. 2006 Rapanos/Carrabel decision. US v. Riverside Bayview Homes:  US v. Riverside Bayview Homes This land developer in California challenged the Corps new regs that expanded their jurisdiction to cover tributaries to navigable waters. The Supreme Court held that wetlands that are located “adjacent” to navigable waters are in fact regulated by Section 404. They also confirmed that the requirement for a 404 permit did not constitute a “taking” of private property. Milestone Timeline:  Milestone Timeline 1972 Clean Water Act passed. 1977 Clean Water Act amended. 1985 Riverside Bayview case 1990 “No Net Loss” policy created. 1998 “Tulloch Rule” overturned. 1999 West Virginia coal mining case. 2001 SWANCC decision. 2006 Rapanos/Carrabel decision. No Net Loss of Wetland:  No Net Loss of Wetland Between 1977 and the late 1980s, the Army Corps of Engineers created it’s Regulatory Branch and became a regulatory agency. In 1990, then President Bush I created the goal that in the United States, there would be a no net loss of wetlands in the future. Compensatory Mitigation:  Compensatory Mitigation In the process the Corps created the concept of compensatory mitigation, that is replacing lost acres of wetland with new acres. Over the years, 2:1 has become the standard wetland mitigation requirement. This policy is still in place today and still drives Corps policy. Milestone Timeline:  Milestone Timeline 1972 Clean Water Act passed. 1977 Clean Water Act amended. 1985 Riverside Bayview case. 1990 “No Net Loss” policy created. 1998 “Tulloch Rule” overturned. 1999 West Virginia coal mining case. 2001 SWANCC decision. 2006 Rapanos/Carrabel decision. Tulloch Rule:  Tulloch Rule The issue of what constitutes a discharge was put into policy in the 1990s by the Chief of the Corps’ Baltimore District, by the name of Tulloch. The Tulloch Rule policy that said that when soil was excavated from a wetland or stream some of that soil would always “fallback” into the wetland or stream, and that was a discharge and therefore excavation was a regulated activity and needed a 404 permit. Tulloch Rule:  Tulloch Rule Col. Tulloch’s policy was overturned by the Courts in 1998. The Corps responded by creating the “one-step removal method” to try and clarify when excavation from a wetland or stream needs to have a 404 permit. Milestone Timeline:  Milestone Timeline 1972 Clean Water Act passed. 1977 Clean Water Act amended. 1985 Riverside Bayview case. 1990 “No Net Loss” policy created. 1998 “Tulloch Rule” overturned. 1999 West Virginia coal mining case. 2001 SWANCC decision. 2006 Rapanos/Carrabel decision. West Virginia Coal Mining Case:  West Virginia Coal Mining Case In 1998, an environmental group in West Virginia filed suit against the Corps claiming that headwater streams were not being regulated by the Corps and were being filled in large numbers. Federal Judge Hayden agreed and what followed was a series of injunctions, EIS work, and new Corps policies. The Corps started regulating headwater streams in earnest in 2002. Milestone Timeline:  Milestone Timeline 1972 Clean Water Act passed. 1977 Clean Water Act amended. 1985 Riverside Bayview case. 1990 “No Net Loss” policy created. 1998 “Tulloch Rule” overturned. 1999 West Virginia coal mining case. 2001 SWANCC decision. 2006 Rapanos/Carrabel decision. SWANCC Decision:  SWANCC Decision The Solid Waste Authority of Northern Cook County Illinois became the focus of another Supreme Court 404 related decision in 2001. This time the question was again related to what is a water of the US? Because of this case, wetlands could now be determined to be “isolated” and not subject to Section 404. Milestone Timeline:  Milestone Timeline 1972 Clean Water Act passed. 1977 Clean Water Act amended. 1985 Riverside Bayview case. 1990 “No Net Loss” policy created. 1998 “Tulloch Rule” overturned. 1999 West Virginia coal mining case. 2001 SWANCC decision. 2006 Rapanos/Carrabel decision. Rapanos/Carrabell:  Rapanos/Carrabell In 2005, the combined cases of John Rapanos and June Carrabell were heard by the Supreme Court. Again…both cases involved the issue of whether Congress meant to regulate wetlands that were not directly adjacent to truly navigable waters. Rapanos Decision:  Rapanos Decision Back to the question of what did Congress mean in 1977 when they last spoke to the working of Section 404? As an example of how difficult this issue is; there are 9 justices on the Supreme Court and this case generated 5 written opinions… Specifics:  Specifics Justice Scalia wrote the majority opinion siding with Rapanos. He was joined by 3 other justices and their position was that the Corps had exceeded what Congress had in mind when it used the term navigable water in 1977. Justice Stevens and 3 others concurred in their dissenting opinion stating that they thought the Corps acted properly. Tie Breaker:  Tie Breaker At this point each side had 4 justices. Justice Kennedy also wrote a separate opinion, in which he agreed with the Scalia opinion and that made it 5-4 against the Corps. Justice Kennedy opinion:  Justice Kennedy opinion Whereas the Scalia opinion stated that a stream or wetland could be regulated only if it was adjacent to a navigable water, the Kennedy opinion said that no matter where a stream or wetland was on the landscape it could be regulated if it could be shown to have a “significant nexus” to a downstream navigable water. Kennedy opinion:  Kennedy opinion Of course he didn’t define the term significant nexus and left the Corps and EPA to create guidance for their staff on how to implement this new concept. And…neither Mr. Rapanos nor Ms Carrabell got the relief that they wanted. The Supreme Court remanded their case back to the lower courts for re-hearing. Rapanos Guidance:  Rapanos Guidance The Corps and EPA jointly issued “Rapanos” guidance this past June. Our next session will deal with details on how the Corps is going to implement this new guidance. KYTC is going to be asking you all to provide whatever technical information this new guidance requires. H.R. 5421:  H.R. 5421 The CWA has not been amended since 1977. The courts have been the driving force when faced with specific cases. Congress has tried and failed to re-authorize the CWA several times. Now a bill has been introduced to address the issue of what is meant by the term water of the United States. Websites:  Websites HR 2421 www.govtrack.us/congress/bill.xpd?bill=h110-2421 Corps Rapanos website www.usace.army.mil/cw/cecwo/reg/cwa_guide/cwa_guide.htm www.pacificlegal.org/ www.aswm.org/

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