The National Pulse

Going With the Flow


After an 18-year legal battle with the government, the U.S. Supreme Court will take up his case Feb. 21 and will do so wondering about the same question: Do federal environmental regulators indeed have jurisdiction over fields and streams that are miles from a navigable waterway?

Rapanos v. United States, No. 04-1034, is the first major environmental dispute to come before the court under new Chief Justice John G. Roberts Jr. It could determine the fate of 100 million acres of wetlands in the lower 48 states, an area that combined is about the size of California. It also could give an early reading on the broader question of whether the new court will press to limit federal power.

“Hopefully, the court is taking this case to definitively answer the question of whether there is federal jurisdiction over wetlands and to end the abuse of federal power under the Clean Water Act,” says M. Reed Hopper, counsel for the Pacific Legal Foundation in Sacramento, Calif., which represents Rapanos. About 75 percent of those “wetlands” are on private property, he adds, and many of those acres are dry much of the year. Nonetheless, federal authorities have sought jail terms or imposed big fines on landowners who cleared their fields without a required federal permit. Rapanos faces $13 million in fines and fees.

Hopper calls it “a total fiction” to say the 1972 law gives federal regulators authority over these inland fields and streams. Fiction or not, federal regulators have maintained for the past three decades they have broad power under the Clean Water Act to prevent pollution and to preserve wetlands. Their theory is as simple as gravity: Since water flows downhill, the “navigable waters” of the U.S. can be made clean only if upstream pollution is prevented. Dredging or filling a wetland also is defined as adding a pollutant to U.S. waters.

The Bush administration is defending this broad reading of the law. The Clean Water Act forbids the discharge of “any pollutant” into “navigable waters,” and U.S. Solicitor General Paul Clement has said those words have been “reasonably defined to include wetlands adjacent to tributaries that flow into traditional navigable waters.”

Defying the Feds

After a heavy rain, water from the fields owned by Rapanos makes its way into a man-made ditch. It flows to a small creek and then to a river that empties into the lake at Saginaw Bay. Rapanos ignored warnings from federal regulators and filled in low lying areas of his land to sell the parcel for a shopping center.

The Environmental Protection Agency brought both criminal and civil charges against Rapanos. The Cincinnati-based 6th U.S. Circuit Court of Appeals upheld his conviction and said the EPA had jurisdiction because there was “a hydrological connection” between his land and Lake Huron.

Environmentalists were alarmed when the Supreme Court agreed to hear his challenge. “This could mean a dramatic cutback in the reach of the Clean Water Act,” says Howard Fox, a lawyer for Earthjustice in Washington, D.C. “Industry wants to limit the CWA to traditional navigable waters—places where you can float a boat—and that would knock out well over 90 percent of the waters of the United States. They could discharge oil into a stream and evade the coverage of the law.”

Five years ago, the court first served notice it might shrink the reach of the anti-pollution measure. In a case involving water-filled gravel pits near Chicago, the court in a 5-4 decision said the Army Corps of Engineers did not have jurisdiction over ponds that were the temporary homes to migratory birds. Solid Waste Agency of Northern Cook County v. Army Corps of Engineers, 531 U.S. 159.

Chief Justice William H. Rehnquist, writing for the court, said these isolated ponds were well beyond the federal government’s “traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be made so.”

That decision answered one question but posed a new one. What about the tens of thousands of inland streams and millions of acres of wetlands that send water flowing toward a navigable river or lake? Some lower courts read Rehnquist’s comment as indicating the Clean Water Act was limited largely to truly navigable waters. Others said the decision on “isolated ponds” changed little and did not alter the long-claimed federal jurisdiction over areas that send water flowing toward navigable waterways.

“From a purely environmental perspective, there is an incredible amount at stake in this case,” says Georgetown law professor John Echeverria. The issue goes beyond wetlands, he says, adding, “It is whether the federal government can effectively address water quality problems.”

Concerns about Roberts

Environmentalists are worried in part because of the new chief justice. As a judge, Roberts famously dissented in the case of the “hapless toad,” the endangered inhabitant of a dry canyon near San Diego. Rancho Viejo LLC v. Norton, 334 F.3d 1158 (D.C. Cir. 2003).

Due to the broad reach of the Endangered Species Act, developers were barred from building there because of the toad. Roberts wondered how the federal jurisdiction extended so far. While the law at issue is different in the Michigan wetlands case, it raises a similar question on the reach of federal power.

Paired with Rapanos, the justices will hear a second wetlands related case from Michigan that offers a different twist. Developers who want to build condominiums on 20 acres north of Detroit also ran afoul of the Army Corps of Engineers. But their lawyers say the property is surrounded by a man-made berm that blocks the flow of water.

“We can’t pollute navigable waters because we are not connected to them. It’s a physical impossibility,” says Timothy Stoepker, who represents the petitioners in Carabell v. U.S. Army Corps of Engineers, No. 04-1384. Lower courts upheld federal jurisdiction because the 20 acres and their wetlands are just a mile from Lake St. Clair and well within its watershed.

The court will hear a third Clean Water Act case on the same day, and it will determine whether environmentally friendly states can regulate the dams on their rivers. S.D. Warren Co. v. Maine Board of Environmental Protection, No. 04-1527, represents a clash between energy and the environment.

The Federal Power Act gives federal energy regulators the exclusive authority over dams that generate electric power. However, the Clean Water Act gives states a role in preserving the water quality in their rivers. State permits are required before anyone can add or “discharge” anything into the river.

In the past decade, states have used this authority more aggressively to require dam operators to maintain a greater flow of water to preserve fish and for purposes of recreation on the river. This permitting authority “is the only way the state can assure its water quality standards are applied to dams,” says Maine assistant attorney general Carol A. Blasi. “We are requiring them to spill more water to maintain a minimum flow for the fish.” This extra water flow reduces the amount of power produced by the dam, however. S.D. Warren operates five hydropower dams on the Presumpscot River. Its owners say they do not come under the Clean Water Act because they do not discharge water into the river. Water goes into the dam, through the power turbines and out the other side, but without anything being added to it, they argue.

Nonetheless, the Maine Supreme Judicial Court upheld the state’s permit requirement. Its judges agreed the dam operator “is not adding more water to the river. However, a discharge results because Warren’s dams remove the water of the river from its natural course, exercise private control over the water and then add the water back into the river. This is a discharge” as defined by the Clean Water Act, the state judge concluded. Patrick Parenteau, an environmental law expert at Vermont Law School, says the court’s decision in this case could have a crucial impact on America’s rivers. “Without this permitting authority, the states are powerless to restore and improve the habitat for fisheries,” he says. “With it, they have a powerful lever.”


David G. Savage covers the U.S. Supreme Court for the Los Angeles Times and writes regularly for the ABA Journal.


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