| Subject: Another point of View on this issue |
Author:
Linda B
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Date Posted: 11:52:13 05/12/09 Tue
In reply to:
Jackie Juntti
's message, "LEG/WATER: Stop Biggest Federal Power Grab in History" on 11:50:32 05/12/09 Tue
Actually, the reason for removing the word navigatable from the definition is for clarification, as there have been a host of law suits (I was involved in one - Save Our Sonoran v Flowers) against the U.S. Army Corp of Engineers regarding the issuance of Section 404 permits under the Clean Water Act. We were in court for seven years.
The courts have issued conflicting interpretations and the removal of the word navigatable clarifies the definition so that it applies to desert washes, where developers are more than happy to fill so they can maximize densities on their projects only to cause flooding downstream. Without clarifying the definition, the Corps will continue to issue permits based on criteria presented by the developer and thus becoming a rubber stamp mill for Lennar, Pulte, Del Webb, Toll Brothers, etc., without doing proper environmental assessments.
In fact, it was in the Rapanos case mentioned in the bill where Scalia mocked our case:
and (most implausibly of all) the “washes and arroyos
” of an “arid development site,” located in the middle
of the desert, through which “water courses . . . during
periods of heavy rain,” Save Our Sonoran, Inc. v. Flowers,
408 F. 3d 1113, 1118 (CA9 2005).
2 We are indebted to the Sonoran court for a famous exchange, from
the movie Casablanca (Warner Bros. 1942), which portrays most vividly
the absurdity of finding the desert filled with waters:
“ ‘Captain Renault [Claude Rains]: “What in heaven’s name brought
you to Casablanca?”
“ ‘Rick [Humphrey Bogart]: “My health. I came to Casablanca for the
waters.”
“ ‘Captain Renault: “The waters? What waters? We’re in the desert.”
“ ‘Rick: “I was misinformed.’ ” 408 F. 3d, at 1117.
So, in a nutshell, that's the purpose of this bill -- no more, no less. Another case that was won last week by a friend of mine halted a 10,000-acre project along the Hassayampa River bed at the foothills of the White Tank Mountains. Without the 404 permit, the developer lamented it would not be able to develop approximately 3,000 acres of the project as planned. Rather than performing an Environmental Assessment, which reviewed impacts to only about 26 acres of the project, the Corps should have required an Environmental Impact Study on the entire project.
That's what happens when developers' attorneys find loopholes in regulations for the purpose of getting around them solely for the purpose of maximizing their client's profits, without a damn for the neighboring community, wildlife, flooding they cause, etc.
So, this isn't a power grab bill, it is a bill to clarify definitions so the courts understand the purpose of the law they have been required to interpret through 30 years of lawsuits.
Linda
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