Court to review Clean Water Act
Los Angeles Times
Published in the Daily News (WA) on February 21, 2006
WASHINGTON -- The Supreme Court will take up a property rights case Tuesday that could greatly curtail the federal law credited with cleaning up the nation's rivers, lakes and bays after decades of industrial pollution.
The Clean Water Act of 1972 made it illegal to discharge pollutants without a permit into the "navigable waters of the United States." Federal regulators read this measure as protecting tens of thousands of small streams and hundreds of millions of acres of wetlands that flow toward larger waterways, even if they themselves were far from the nearest river or bay.
But to the surprise of environmentalists, the court agreed to hear a direct attack on that broad view of the law. Farmers and developers say it is far-fetched to describe low-lying farm fields, or even dry creek beds in the West, as part of the nation's navigable waterways.
Tuesday, the court will hear the case of John Rapanos, a Michigan developer who was fined $13 million in a long-running legal battle that began when he defied federal agents by filling in 22 acres of a wet field he owned about 20 miles from Lake Huron.
Water from this field can flow into a drainage ditch, which in turn flows into a stream and a river that leads to the lake. This "hydrological connection" gives federal regulators authority over the field, government officials say.
The Pacific Legal Foundation, a property-rights group based in Sacramento, Calif., is defending Rapanos and urging the court to limit the reach of the federal law.
It is a "total fiction" to say the Clean Water Act extends much beyond rivers and bays "where you can actually float a boat," said M. Reed Hopper, principal attorney for the foundation. "Hopefully, the court is taking up this case to end this abuse of federal power," he said. Environmentalists fear that a win for Rapanos could dramatically cut back one of the nation's most effective anti-pollution laws.
Congress passed the law after a decade in which polluted rivers caught fire and fish in the Great Lakes were dying out. Lawmakers said the nation needed a comprehensive anti-pollution effort to restore waterways to health.
Today, according to a Sierra Club report, 60 percent of the nation's rivers and bays are safe for swimming and fishing, up from 36 percent in 1970. It credited the Clean Water Act.
The Environmental Protection Agency and the Army Corps of Engineers enforce the law by trying to prevent pollution from getting into the waterways in the first place.
To refocus the law only on navigable waterways "would cut the heart out of the Clean Water Act and take us back to the 19th century," said Howard Fox, a lawyer for Earthjustice in Washington. "If the court were to adopt the most narrow reading of the law, it would mean more than 90 percent of the waters now covered will be deprived of federal protection."
To add to the interest, the Rapanos case will be the first to be heard by Justice Samuel A. Alito Jr. It will also be the first environmental case to come before Chief Justice John G. Roberts Jr.
Both of President Bush's appointees are veterans of the Reagan administration, which sought to limit the reach of federal environmental laws. As lower court judges, Roberts and Alito hinted that they favored limits on federal authority.
However, in the cases to be heard this week, the Bush administration has allied itself with the environmental movement. U.S. Solicitor General Paul D. Clement urged the justices to preserve the broad reach of the Clean Water Act.
Congress has the power to keep the nation's "navigable waters free of pollution," he said in his brief to the court, and that goal can be achieved only if regulators can prevent "upstream pollution discharges" into streams and wetlands.
About 100 million acres of wetlands in the lower 48 states could be affected by the outcome. About 75 percent of these acres are on private land. Besides Alaska, the states with the largest areas of wetlands are Florida, Louisiana, Minnesota and Texas. In all, 34 states urged the court to maintain broad federal regulation over streams and wetlands.
Environmentalists were taken aback in October when the Supreme Court agreed on a single day to hear three major challenges to the Clean Water Act -- all of which were brought by developers and industry officials.
But it comes as no surprise that the court's conservatives seek to limit the reach of the law. Five years ago, they joined together to rule that isolated ponds and wetlands that did not flow into a stream were beyond the reach of federal regulators.
Speaking for the 5-4 majority, then-Chief Justice William H. Rehnquist said the Clean Water Act should be read in line with the federal government's "traditional jurisdiction over waters that were or had been navigable in fact."
Next, the justices will hear the appeal of June Carabell, a Michigan developer who was blocked from building condominiums on a parcel of low-lying land north of Detroit.
After the two wetlands cases, the court will hear a Maine case that represents a clash between energy and the environment. At issue is whether the states can regulate the river flows passing through about 1,500 power dams.