Sums it up State by State

[Bejay]

http://www.eli.org/sites/default/files/eli-pubs/d23-04.pdf

http://deltafarmpress.com/government/epa-corps-engineers-unveil-proposed-rule-protecting-us-waters


"Regarding Clean Water Act jurisdiction, it is unclear whether the status quo at the federal
level is better characterized as an absence of federal regulation with respect to certain waters, or instead as
federal regulation that excludes certain waters (as such regulation has been construed by the Supreme
Court).57 The former could be interpreted as federal “silence;” the latter would more likely serve
as a corresponding limit on state regulation under a stringency provision. Lawyers litigating the
reach of a stringency provision before a state court could make the argument for either position.
D. IMPLICATIONS FOR PROTECTING ADDITIONAL STATE WATERS
Each stringency provision identified by this study acts as a brake, to a greater or lesser
extent, on state agency efforts to take action in the wake of SWANCC and Rapanos. With more
than half of all states having these restrictions on the books, it is unlikely that the nation will fully
reclaim protection on a state-by-state basis over the waters excluded from federal jurisdiction by
SWANCC and Rapanos. As has already been discussed, the mere existence of state stringency
prohibitions inhibits state regulators, even if they believe that they can overcome a stringency
prohibition in part, or comply with a qualified stringency prohibition in full. A rational state
agency may well determine that finite funding, staff resources, and political capital are better
deployed in areas that present fewer obstacles to success.
For the determined state agency facing a stringency limitation, however, there may be
several avenues by which it can properly square the protection of waters with application of the
state provision. First, it matters how the state agency proposes to bring additional waters under
state regulation. An agency may, by regulation, seek to build on its Clean Water Act § 402 or 401
(or, rarely, 404) program based on an interpretation of the state water pollution control law or
water quality law used to implement the federal Act. Or, the agency may rely chiefly on a
separate state law that operates independently of the federal Clean Water Act (e.g., a state
freshwater wetlands law). Some state stringency provisions would appear to limit the reach of
52."



Bejay

 

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[dredgeman]

In Calif

The SWRCB just took the water quality issues away from local control by the health dept.
The State Water Resources Control Board is the EPA. Just as the Air Boards are EPA

In Calif now the EPA just took over all water and air in the state. They have big plans for ground water control
We have been trying to get local control back with local jurisdiction.

 

[russau]

I thought all waters/lakes/ponds/wetlands in the United States were passed to the Corps of Enginers from the EPA.

 

[Bejay]

I believe it important to understand the scope of regulation(s) each state assumes; and if and when there are permit issues and restrictions one must understand what the intent of the regulations are. This would mean one should understand from what Law/Act such authoritative regulations stem.
For example: In Oregon there are 850 dredge permits being issued. If so why is there a limit? And what Fed Act/Law gives the authority for a State permit. Lets say the Oregon DEQ (NEPA) permit is one based on "controlling pollution" or "Water quality" per the Clean Water Act. There has to be a reason for State regulatory oversight and permits.

What is the basis of a permit? In Calif it was "mercury" then it was "yellow tailed frog"...and of course ? CDFG. If it is an issue of pollution then one can address that issue: Which the Supreme Court has ruled on numerous times. If it is the ESA then one has to deal with that issue.

So the above PDF brings forth the amount of State regulations; and points to issues that are relevant for further regs.....per the research offered the EPA....by way of this PDF. Is it not true that the EPA is a part of the Corp? So the EPA recommendations per dredging seem to be extremely relevant.

One must know the "why" and "how" in such contentious dredge issues. So the above PDF helps bring out such information....IMHO

I'll have to spend more time studying the PDF and how such studies influence the policy makers. If and when regulatory challenges occur one must keep in mind the importance of knowing exactly how to focus a challenge on the specific "intent" of the authority and from which/what/how it is being derived....IMHO

So in Oregon if the permit is simply a "pollutant discharge permit" one would address that issue directly and base a challenge to that permit on "pollutant". This "dredge discharge pollutant issue" of course has gone all the way to the Supreme Court on numerous occasions. Does the State have the right to "regulate pollutants of the non-navigable Waters "? It is easy to agree that they do. (public safety...equitable use....etc). So the intent and words matter!

But this PDF does bring forth some "reasons" for regulations...and knowing from where these regulations stem is important.....IMHO

Bejay