On the issue of whether jurisdiction can lie for impacts on interstate commerce rather than a physical nexus with navigable waters, the Supremes in an earlier decision (the SWANCC case) rejected this construct in the context of the Migratory Birds Act. However, the Court did not indicate that such an interpretation would violate the Commerce Clause; however, applying the Chevron standard, it indicated that Congress would have to establish a clearer intent to extend the purview of the Clean Water Act's 404 jurisdiction to this extent. Of course, with the current Congress, that's whistling in the wind ... Also, since Rampanos was a plurality, rather than a majority, decision, there's an entire another layer of complication in discerning the implications for 404 in the future. wil
Dr. Wil Burns Senior Fellow, International Environmental Law Santa Clara University Law School 500 El Camino Real, Loyola 101 Santa Clara, CA 95053 USA Phone: 408.551.3000 x6139 Mobile: 650.281.9126 Fax: 408.554.2745 [EMAIL PROTECTED] -----Original Message----- From: Ecological Society of America: grants, jobs, news [mailto:[EMAIL PROTECTED] On Behalf Of Dave Thomson Sent: Friday, September 01, 2006 2:17 PM To: [email protected] Subject: Re: Making Sense of Rapanos v. United States Is this a case of being unable to see the forest for the trees? There are over 100 pages of syllabi on this case in the Supreme Court's opinion journal! http://www.supremecourtus.gov/opinions/05pdf/04-1034.pdf I am not going to commit to reading it all, but my unscientific sample of it led me to believe it is the same old arguments about what constitutes a significant federal nexus and what the drafters of the act meant by navigable waterways... I wonder why the Justices agree to hear cases on this subject. They must be tired of rehashing the same arguments by now! If I ma mistaken, I would be relieved by a correction. Now I can appreciate the importance of the Commerce Clause to federal jurisdiction. And I could hazard a guess that the reason for the use of the term navigable is to link the waters to interstate commerce via boats carrying goods for sale across state lines. This makes me wonder what the Commerce Clause actually means, but perhaps I digress. That aside, and to get to my point, what about the importance of clean water - without navigation - to interstate commerce? Doesn't water play a role in almost every aspect of commerce in this country? I would be hard pressed to think of any commerce that does not benefit from clean water, even if it's simply the water that workers (and bosses) drink, so why does federal jurisdiction need to use interstate shipping as a nexus? Perhaps someone should as the Justices: Is it the Clean Water Act or is it the Navigable Waters Act? David Thomson -----Original Message----- From: Ecological Society of America: grants, jobs, news [mailto:[EMAIL PROTECTED] On Behalf Of John Thompson Sent: Friday, September 01, 2006 8:05 AM To: [email protected] Subject: National Wetlands Dialogue: Making Sense of Rapanos v. United States Please post this announcement, which we feel would be of great interest to your members. For Immediate Release Release Date: 9/01/06, 11 a.m. National Wetlands Dialogue: Making Sense of Rapanos v. United States Given the U.S. Supreme Court's recent failure in Rapanos v. United States to carve out a definitive rule on what constitutes jurisdictional wetlands, the current edition of the National Wetlands Newsletter(r) (September/October 2006) offers much-needed insight and analysis on the decision. This particular issue should prove quite valuable to environmental practitioners as they eagerly await guidance on the matter from the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers. David Urban of Land and Water Resources, Inc., examines what Rapanos may mean for mitigation bankers, while Tom Ward from the National Association of Home Builders provides a land developer's perspective. Jon Kusler and Jeanne Christie, Association of State Wetlands Managers, Inc., offer guidance on how states should respond to Rapanos, while Ed Thomas, a noted floodplain manager, looks at how hydrology can be useful in demonstrating the way wetlands impact water quality. Other contributors include Jim Murphy with the National Wildlife Federation and Mark Moller at the Cato Institute. "While many of the contributors to this issue differ as to the end result in Rapanos, much like the Justices they seek to analyze, each article offers unique insight as to what the decision means for wetlands and provides thoughtful guidance on how we should respond in the future," said NWN Editor Rachel Jean-Baptiste. A sample article is available for download in PDF format at www.eli.org. For more than two decades, the nationally recognized National Wetlands Newsletter has been a widely read and respected journal on wetlands, floodplains, and coastal water resources. The newsletter, published by the highly respected Environmental Law Institute(r), analyzes the latest topics in wetland regulation, policy, science, and management through feature articles written by local, national, and international experts from a variety of perspectives. ### For more information on National Wetlands Newsletter, and the articles contained in the September/October 2006 issue, please contact: Rachel Jean-Baptiste Editor, NWN 202-558-3101 [EMAIL PROTECTED] John R. Thompson Director, Marketing and Communications Environmental Law Institute 202-939-3833 [EMAIL PROTECTED] --------------------------- ENVIRONMENTAL LAW INSTITUTE 2000 L Street, NW , Suite 620, Washington, DC 20036 www.eli.org
