Fred:
Yes, I’m saying that’s not the case – at least in Pennsylvania.
Without getting into a huge legal discussion about the Supremacy Clause and
federal preemption, there are a lot of subject matters where the Feds and the
State have what they call “concurrent jurisdiction.” I don’t like the term
“jurisdiction,” because in my view jurisdiction deals with courts. That’s why
I use terms like “legal authority,” “enforcement authority,” or just
“authority.” Recall from grade school that States have general police power,
while the Federal government supposedly has limited powers as enumerated in the
U.S. Constitution. The written limitation was almost entirely circumvented by
the U.S. Supreme Court’s reinterpretation of the Commerce Clause in the 1930s
(thanks to FDR), and the Federal government now does a lot of things that it
did not do historically. The result is a ridiculously complex web of
concurrent Federal and State authority. For example, the EPA administers and
enforces Federal environmental laws, which were enacted under the authority of
the Commerce Clause. In PA, the State Department of Environmental Protection
administers and enforces State environmental laws under its general police
power, and also administers and enforces Federal law (along with EPA) under a
delegation arrangement with the EPA. At the same time, the U.S. Army Corps of
Engineers has regulatory authority over structures between Ordinary High Water
Mark and Ordinary Low Water Mark – which makes no sense in non-tidal waters
because the high/low water mark framework was created under English common law
to deal with navigable waters under the Public Trust Doctrine (waters that rise
and fall daily are tidal influenced because they are connected to the ocean and
were therefore considered navigable). Adding to the complication, Pennsylvania
owns the beds under navigable waters (as do many other States) and, along with
the Corps, has regulatory authority between Ordinary High and Low Water Marks.
There are local regulatory issues as well.
So, each State may have its own unique circumstances, but generally
speaking the Feds and States have concurrent enforcement authority over
navigable waters within the State.
Matt
Former PA Deputy Attorney General
Former DER Assistant Regional Counsel (assigned to water programs, including
Coastal Zone Management)
Former DEP Northwest Regional Counsel
From: Frederick G Street via CnC-List
Sent: Friday, January 26, 2018 9:38 AM
To: cnc-list@cnc-list.com
Cc: Frederick G Street
Subject: Re: Stus-List "Maritime Documentation Center"
Matt — it’s my understanding that the federal government has sole authority
over the Great Lakes Inland Waterways for purposes of navigation. Are you
saying that’s not the case?
>From a US DOJ site which includes parts of the US code:
Great Lakes Jurisdiction
Also included within the "special territorial and maritime jurisdiction of
the United States" by 18 U.S.C. § 7(2) are the Great Lakes and their connecting
waterways…
Federal jurisdiction under 18 U.S.C. § 7(2) over American vessels is not
affected by the existence of concurrent state jurisdiction…
It seems like the Supremacy clause in the Constitution would mean that Federal
law will supplant local jurisdictions in all cases. The jurisdictions may
overlap, but the Federal rules will always trump local ones.
— Fred
Fred Street -- Minneapolis
S/V Oceanis (1979 C&C Landfall 38) -- on the hard in Bayfield, WI :^(
On Jan 26, 2018, at 7:49 AM, Matthew L. Wolford via CnC-List
<cnc-list@cnc-list.com> wrote:
I just reviewed your note below and the article writer’s legal conclusion
about PFBC legal authority (sometimes called “jurisdiction”). For
clarification, my understanding is that the PFBC’s authority to regulate boats
extends to navigable waters of the Commonwealth, while the USCG authority
extends to navigable waters of the United States. In the case of Lake Erie
(and Presque Isle Bay), the authority of the two agencies overlaps. In other
words, portions of Lake Erie are both waters of the Commonwealth and waters of
the United States, so both agencies have enforcement authority. I suspect it’s
the same in other States, but you would need to look at the applicable State
statute(s).
--------------------------------------------------------------------------------
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