 
February 20, 2006
Reach of Clean Water Act Is at Issue in 2 Supreme Court Cases
By FELICITY BARRINGER
WASHINGTON, Feb. 19 — More than half of the nation's streams
and wetlands could be removed from the protections of the federal
Clean Water Act if two legal challenges started more than a decade
ago by two Michigan developers are supported by a majority of
the newly remade Supreme Court.
One case involves a developer who wanted to sell a wetland for
a shopping center and in preparation filled it with sand without
applying for a permit, in defiance of the authorities. The second
was brought by a would-be condominium developer who applied to
the Army Corps of Engineers for a permit to fill a wetland and
was denied.
Oral arguments in the cases — the first before the newest
justice, Samuel A. Alito Jr. — are scheduled for Tuesday
morning. They will pit developers and a phalanx of their industrial,
agricultural and ideological allies against both the solicitor
general and a who's who of environmental lawyers in an argument
over the scope of one of the country's fundamental environmental
laws.
The central question is where federal authority ends along the
network of rivers, streams, canals and ditches. Does it reach
all the veins and arterioles of the nation's waters, and all the
wetlands that drain into them? Does it end with the waterways
that are actually navigable and the wetlands abutting them? Or
is it some place in between?
Also at issue are who draws those lines — and how —
and who decides what the Clean Water Act means by "navigable
waters" and "the waters of the United States."
Tucked into the larger question is the issue of how many of the
nation's 100 million or so acres of wetlands have a close enough
connection, or nexus, to regulated waters to fit under the same
regulatory umbrella.
The twin cases, blending questions of hydrology and federalism,
take aim at the constitutional and legal underpinnings of the
federally run system that controls the health of the nation's
web of waterways. The developers argue that the federal custodians
of the Clean Water Act have overreached by asserting jurisdiction
over ditches and wetlands far from the large waterways over which
Congress has clear authority.
In addition, the cases bring a rich cast of characters to the
court. It includes a cantankerous developer who has likened environmental
regulators to Nazis, a legal foundation dedicated to reining in
government and a diverse group of supporters on both sides, including
the Western Coalition of Arid States, the Association of California
Water Agencies, the American Petroleum Institute and the libertarian
Cato Institute.
M. Reed Hopper of the Pacific Legal Foundation, who represents
one developer, John A. Rapanos, argues that the existing interpretation
of the law infringes on the rights of states and individuals and
impermissibly gives the federal government authority over "any
area over which water flows, including a public street with an
attached storm drain, a private lawn that drains to the street
or, quite literally, the kitchen sink."
In response, the government, backed by major environmental groups,
federal and state regulators and a bipartisan group of former
administrators of the Environmental Protection Agency, says that
the theories of Mr. Rapanos and his fellow developer, June Carabell,
would remove more than half of existing waterways — perhaps
as many as 99 percent, by one estimate — from federal water
pollution controls.
In addition, they argue, if the court were to uphold the developers'
position, the result would be to upend a decades-old regulatory
system.
Wetlands are nurseries for creatures at the bottom of many food
chains, filters that keep some nutrients and pollutants out of
streams, and buffers against flooding.
If the court interpreted the Clean Water Act as controlling only
actually navigable waterways and their immediate tributaries and
adjacent wetlands, "then discharges of such materials as
sewage, toxic chemicals and medical waste into those tributaries
would not be subject" to regulation under the law, the solicitor
general, Paul D. Clement, wrote in the government's brief.
Both developers sought to fill wetlands to make way for development
— in Mr. Rapanos's case, a shopping mall in Midland, Mich.;
in the case of Ms. Carabell, a condominium in Chesterfield Township.
Mr. Rapanos defied state regulators, who, acting with federal
authority specifically delegated by the E.P.A., told him not to
fill his wetland without a permit. Ms. Carabell applied for a
permit from the Army Corps of Engineers and was rejected.
The two cases present physical as well as legal differences.
The wetlands owned by Mr. Rapanos — two others, in addition
to the one where the shopping center was once planned —
are as far as 20 miles from local rivers, but adjacent to ditches
that drain into tributaries of those rivers. Ms. Carabell's wetlands
abut a ditch that drains into nearby Lake St. Clair, but are separated
from the ditch by an earthen berm.
The legal arguments in the briefs pit two recent Supreme Court
precedents against each other. In a 1985 California case, United
States v. Riverside Bayview Homes, the court observed that Congress
had intended "to regulate at least some waters that would
not be deemed 'navigable' under the classical understanding of
that term." Referring to the role of wetlands in protecting
larger waterways, the court said that activity in wetlands abutting
open waterways could be controlled by the corps.
In this case, the government argues that the court should extend
the authority of the corps to wetlands abutting tributaries of
actually navigable waters. The constitutional lever through which
the control is exercised is the Commerce Clause, which provides
for federal control both over direct avenues of commerce —
like waterways crucial to trade — and over issues that "substantially
affect" interstate commerce.
In 2001, in an Illinois case, Solid Waste Agency of Northern
Cook County v. United States, the court said the corps overreached
its legal and constitutional authority by claiming control over
an isolated quarry. The quarry had filled with water and was used
by migratory birds, which are protected under federal law. The
court ruled that there had to be a "significant nexus"
between the regulated wetland or stream and true "navigable
waters." If not, regulation of the water body fell to the
state.
Most states represented in the amicus briefs, minus Alaska (where
most of the country's wetlands are located) and Utah, back the
government. A brief for state and regional water pollution officials
said states "know they cannot adequately protect these resources
acting alone."
As Douglas Kendall, one of the lawyers for these officials, explained,
a downstream state could suffer the pollution from a neighbor
raking in tax revenues off the associated development. The downstream
state, he said, would have clear economic incentives to do the
same.
But the brief for Alaska, Utah, the California Farm Bureau and
several Western water authorities argues that "the wetlands
in these cases did not have a 'significant nexus' to navigable
waters because they were not adjacent to navigable waters; did
not significantly affect navigation or interstate commerce in
such waters; and had no apparent, significant effects on the actual
flows or condition of such waters."
That brief argues that it is the federal control over navigation
that gives the E.P.A. and the corps authority over navigable waters,
and that unless their regulations directly prevent impediments
to navigation — unless, for example, they deal with issues
like the level of river flows — the issues fall to the states.
The act, the brief argues, "authorizes federal jurisdiction
up to the limits of the navigation power but not beyond."
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