Monday, September 20, 2010

Wetlands, Schmetlands . . .

It's nice to see our federal representatives bring a full court press on getting the Army Corps of Engineers to move on the Marcy Nanotech wetlands permit.  ACE will not give a permit until EDGE finds a developer . . . but EDGE probably won't find a developer until it gets the permit.

But as noted here back in June, EDGE has too many subsidiary players for ACE, or the taxpayers to keep track of ...

With the "wheels within wheels" approach, just whom would the Army Corps hold accountable to ensure that all permit conditions are complied with? SUNYIT? EDGE? Fort Schuyler Management (with no track record, no assets, and no individual co-signers to secure performance)? An unknown developer or tenant for the site?
EDGE -- which shelved this permit application back in 2002 -- which kept the Marcy site from being "shovel ready" -- which allowed the Luther Forest Technology Park in former Sen. Joe Bruno's district to leap from the drawing board over Marcy to full development -- needs to be more transparent in its operations.

That said, there is another issue in this brave new world of Federal Government take over of our lives:  Why is there even federal regulation of wetlands?

New York State has an extensive regulatory framework over wetlands. They are all mapped so people are put on notice of where they are.  They also are all at least 12 acres in size, so they are significant.  Why is it the FEDERAL government's business to regulate smaller wet spots -- and even some not so wet spots -- to begin with?
So while Messrs. Arcuri and Schumer and Ms. Gillibrand should be thanked for getting behind EDGE (something Mr. Boehlert did not do when his party was in charge in Albany and Washington), perhaps they should be questioned on the Federal interest in these minuscule wetlands.

Perhaps it's time for them to end some of the Federal involvement in our lives and let the States do their job in their own way.


Anonymous said...

I could not agree more with the conclussion that the Federal government has prempted the state. However, this is a bit like alarm after the horses left the barn and over but one function. The Federal government has prempted the states in virtually all functions, laws and regulations. the states are now, by and large, federal conduits. In that sense, our Constituion has been altered, step by step since the beginning of the Progressive movement.

Anonymous said...



The Corps’ current regulations interpret “the waters of the United States” to include, in addition to traditional interstate navigable waters, 33 CFR §328.3(a)(1) (2004), “[a]ll interstate waters including interstate wetlands,” §328.3(a)(2); “[a]ll other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce,” §328.3(a)(3); “[t]ributaries of [such] waters,” §328.3(a)(5); and “[w]etlands adjacent to [such] waters [and tributaries] (other than waters that are themselves wetlands),” §328.3(a)(7). The regulation defines “adjacent” wetlands as those “bordering, contiguous [to], or neighboring” waters of the United States. §328.3(c). It specifically provides that “[w]etlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like are ‘adjacent wetlands.’ ” Ibid.

The supreme court has held that the only natural definition of the term “waters,” and subsequent judicial constructions of it, clear evidence from other provisions of the statute, and this Court’s canons of construction all confirm that “the waters of the United States” cannot bear the expansive meaning that the Corps would give it.

The Corps’ expansive interpretation of the “the waters of the United States” is thus not “based on a permissible construction of the statute.” Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843 (1984) .

Strikeslip said...

Thanks for the cite, Anonymous! I have the BEST READERS!!!

I read the case. It definitely limits the wetlands that the feds may regulate to those with a "significant" nexus to navigable waters . . . . Of course "significant" is one of those pliable words that can be expanded or contracted to whatever matches the (non-legal) opinion of the justices.

But there is an even more basic issue: Since when are there "waters of the United States" . . . at least in the original 13 colonies?

New York obtained its authority over its waters from both Dutch and English law as a colony of each, depending on the part of the state one is in. With independence, New York became sovereign over its lands and waters. There is nothing in the constitution where this sovereignty was ceded to the federal government.