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Monday, February 20, 2006

Environment - Clean Water Act at issue in U.S. Supreme Court oral arguments

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.
That is the lead to this report by Felicity Barringer in today's NY Times. More:
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 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."

And minus Indiana. Here is the list of states supporting the government's position: New York, Michigan, Arizona, Arkansas, California, Connecticut, Delaware, Florida, Hawaii, Illinois, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Montana, New Hampshire, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, Tennessee, Vermont, Washington, and Wisconsin, the District of Columbia, the Pennsylvania Department of Environmental Protection, and the International Association Of Fish And Wildlife Agencies.

See this site for all the documents in the Rapanos/Carabell cases.

The Detroit Free Press had a comprehensive article on Friday titled "Case pits your property rights vs. environment." See also this article from this week's Legal Times and this one from the San Franscisco Chronicle.

Posted by Marcia Oddi on February 20, 2006 10:04 AM
Posted to Environment