About this blog: with a significant nexus to navigable waters

14 Jun

“Wetlands possess the requisite [significant] nexus, and thus come within the statutory phrase ‘navigable waters,’ if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable’.”

–Justice Kennedy’s concurrence in Rapanos v. United States, 547 U.S. 715, 780 (U.S. 2006)

In two rulings over the past ten years the Supreme Court dramatically narrowed the definition of “navigable waters of the United States” for the purpose of maintaining federal jurisdiction over wetlands under the Clean Water Act.  The most recent case, Rapanos, set a confusing multi-part standard that has essentially boiled down to Justice Kennedy’s “significant nexus” concept as summarized above.  As a wetlands ecologist and water resources manager, the case fascinates me as an example of the tangled jurisprudential relationship that the United States has with its land, air, and water resources.  How can a wetland not have a significant “chemical, physical, [or] biological” nexus with other waters of the United States?  The water cycle by definition is not confined to any one place, phase, or administrative jurisdiction.  Ecologically, not only is all water within the United States a “water of the United States,” but it is also a water of the rest of the world.  Human legal structures were created to give meaning to the socio-cultural systems that we created, but they fail in strange ways when confronted with ecological systems where property, boundaries, and rights are meaningless.

Walking in the Big Cypress with my father

As a policy analyst and a citizen, I wonder where else this significant nexus concept might be useful.  It’s a strong (if ultimately unhelpful) attempt by Justice Kennedy to make sense of two completely different systems of existence (legal and natural), and as such creates a model for thinking about other cases where different systems interact or clash.

This blog will be an attempt to explore the significant nexuses we confront when we work in the environmental field.  People and ecosystems have so much in common, yet we insist upon seeing ourselves as separate.  When we bump into the reality of the ecological world, we find nexuses that surprise us and invite us in.

I will try to update about once a week.  Please jump in, comment away, and send me your thoughts and links!

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2 Responses to “About this blog: with a significant nexus to navigable waters”

  1. irene wood September 4, 2011 at 11:55 am #

    Hi, I am coming from the opposite side of this issue.
    We are smack in the middle of the ‘significant nexus’ debate,
    as owners of a large parcel of property with a fairly high water table
    and significant seasonal frost. The property is located in Salcha, Alaska.

    Conditions are very different in the far north, but we are regulated under
    the same standards as areas which are not frozen down for eight months of the year.
    (Approximately 44 percent of Interior Alaska is potentially jurisdictional ‘wetlands’
    under the current definitions, most of the rest is mountains.)

    My particular case is described on several threads on the Society of Wetland Scientists
    forum, which right now is discussing the problem of Significant Nexus.

    The ACOE has agreed that our JD is invalid because a Significant Nexus finding is
    required to assert jurisdiction over a portion of our property (40 acres known as Tract B);
    however, they apparently do not have the resources or the ability to do a ‘SigNex’
    and in the meantime we are required to abide by the terms of our invalid JD,
    which means the property is considered jurisdictional.
    This puts us in a complete Catch-22.

    We are not big developers, my husband and I are private individuals (owners of a small
    business and part-time farmers). We bought the property, in good faith, directly from
    the Fairbanks North Star Borough (equivalent of a County), back in 1984, before
    the current wetlands enforcement practices became so extreme. Family concerns
    prevented us from doing anything with the property until recently, and now we feel
    like Rip Van Winkle in regards to the current regulatory environment.

    For the record, our small business is a drinking water delivery service, so it goes without
    saying that we are very aware of water quality protection protocols.

    Our engagement with the ACOE and other regulatory agencies has felt like falling down
    a rabbit hole into a bureaucratic nightmare. From our perspective, the system is broken.

    • elizacava September 4, 2011 at 12:09 pm #

      Hi Irene,
      Thanks for commenting. I wouldn’t say you and I are on opposite sides of how to understand the significant nexus concept–we both agree that it’s incredibly difficult to get human law to apply to an ecological concept, or vice versa. Good luck working with ACOE, and I hope your issue gets resolved in a way that is satisfactory to you without being too damaging to your wetlands.

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