Policies affecting water and environmental permitting will change in the coming years.
Despite Federal water policy currently being in a state of legal limbo (for more, see here), it seems a near certainty that policies affecting water and environmental permitting will change in the coming years. Our colleague Don Riley addressed this issue in speeches at Harvard Law School and MIT.
Let’s talk about Federal water policy and answer the question “Why is the Army involved in locks and dams in the Cape Cod Canal?” In 1802, President Thomas Jefferson established the first U.S. engineering school at West Point, and he wanted to do that for both military and civil purposes.
So, you have this body of engineers now and in 1824, there was a fight in the New York-New Jersey Harbor over shipping rights. New York had given a steamboat shipper named Ogden the exclusive rights to operate in the New York-New Jersey Harbor. The New York Supreme Court approved that right.
The case then went to the U.S. Supreme Court and Chief Justice John Marshall went to the Commerce Clause and said, No, that’s wrong. For interstate commerce it’s a Federal action, not a state action. So that began a pretty big expansion of Federal authority in the Commerce Clause alone and you see more and more of that today.
In 1824, that same year, Congress passed the Rivers and Harbors Act. At the time, Congress understood that our rivers had a lot of obstacles and if you’ve read Mark Twain’s Life on the Mississippi, you’ll know what that meant for shipping. Congress knew that a survey was needed. So who did they go to? They went to the engineers. Who were the engineers? They came out of West Point. And where were they going? They were going to the Army. That’s how your Army got involved in water resources.
To read Don’s MIT speech, please click here.
Leonard Miller, Esq. Senior Advisor
Len was one of the first environmental attorneys at the U.S. EPA and was instrumental in developing EPA’s water permitting program.