Damn — my “sea-lawyering” has been beaten by a “real” lawyer… :^)
I stand corrected. — Fred Fred Street -- Minneapolis S/V Oceanis (1979 C&C Landfall 38) -- on the hard in Bayfield, WI :^( > On Jan 26, 2018, at 10:43 AM, Matthew L. Wolford via CnC-List > <cnc-list@cnc-list.com> wrote: > > Fred: > > Yes, I’m saying that’s not the case – at least in Pennsylvania. > > Without getting into a huge legal discussion about the Supremacy Clause > and federal preemption, there are a lot of subject matters where the Feds and > the State have what they call “concurrent jurisdiction.” I don’t like the > term “jurisdiction,” because in my view jurisdiction deals with courts. > That’s why I use terms like “legal authority,” “enforcement authority,” or > just “authority.” Recall from grade school that States have general police > power, while the Federal government supposedly has limited powers as > enumerated in the U.S. Constitution. The written limitation was almost > entirely circumvented by the U.S. Supreme Court’s reinterpretation of the > Commerce Clause in the 1930s (thanks to FDR), and the Federal government now > does a lot of things that it did not do historically. The result is a > ridiculously complex web of concurrent Federal and State authority. For > example, the EPA administers and enforces Federal environmental laws, which > were enacted under the authority of the Commerce Clause. In PA, the State > Department of Environmental Protection administers and enforces State > environmental laws under its general police power, and also administers and > enforces Federal law (along with EPA) under a delegation arrangement with the > EPA. At the same time, the U.S. Army Corps of Engineers has regulatory > authority over structures between Ordinary High Water Mark and Ordinary Low > Water Mark – which makes no sense in non-tidal waters because the high/low > water mark framework was created under English common law to deal with > navigable waters under the Public Trust Doctrine (waters that rise and fall > daily are tidal influenced because they are connected to the ocean and were > therefore considered navigable). Adding to the complication, Pennsylvania > owns the beds under navigable waters (as do many other States) and, along > with the Corps, has regulatory authority between Ordinary High and Low Water > Marks. There are local regulatory issues as well. > > So, each State may have its own unique circumstances, but generally > speaking the Feds and States have concurrent enforcement authority over > navigable waters within the State. > > Matt > Former PA Deputy Attorney General > Former DER Assistant Regional Counsel (assigned to water programs, including > Coastal Zone Management) > Former DEP Northwest Regional Counsel
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