Justices to Measure Clean Water Act’s Reach

The Supreme Court, in a potentially far-reaching clash between the environment and the rights of property owners, agreed Tuesday to consider limiting the federal government’s power to protect hundreds of millions of acres of wetlands.

After its first private conference led by Chief Justice John G. Roberts Jr., the court said it would hear three cases that asked the justices to cut back on the reach of the Clean Water Act of 1972, the antipollution measure that led to the cleanup of streams, rivers and bays around the nation.

A defeat for the federal government could signal the beginning of a retreat from broad federal protection for the environment. Some conservatives and property-rights activists have urged the high court to be more aggressive in protecting landowners from environmental regulators.

The landmark Clean Water Act gave federal regulators the power to prevent discharges into “navigable waters.” That sometimes resulted in private wetlands miles from the nearest river or bay being declared off-limits to developers.

Environmentalists say the fight against water pollution cannot be limited to the rivers and bays.

“All pollution flows downhill to the navigable waters that the government can and should protect. The debate is over how far upstream the U.S. can reach to protect those waters,” said John Echeverria, executive director of the Georgetown Environmental Law & Policy Institute.

In the late 1970s, the Environmental Protection Agency and the Army Corps of Engineers adopted regulations that gave their agents power over distant ponds and wetlands. If these wetlands were polluted or destroyed, it could affect rivers and bays, the regulators said.

The Bush administration is defending the broad power of federal regulators to protect distant wetlands if they have a “hydrological connection” to a navigable body of water. This means that if some water flows at some time from the wetland to a stream, federal agents may prevent a farmer or developer from dredging or filling the wetland.

U.S. Solicitor General Paul D. Clement urged the justices to turn away an appeal filed on behalf of John Rapanos, a Michigan farmer who was hit with a prison sentence and $13 million in fines after he filled in the wetlands on three pieces of land near Saginaw, Mich.

“The federal government possesses long-standing authority to protect the quality of traditional navigable waters by regulating upstream pollutant discharges,” Clement said.

But the justices instead voted to hear the case of John Rapanos vs. the United States. His case began in 1988 and has become a cause celebre among property-rights activists. Rapanos is represented by the Pacific Legal Foundation, a defender of property rights.

“Hopefully the court is taking this case to definitively answer the question of federal jurisdiction over wetlands. About 100 million acres could be affected by the decision,” said M. Reed Hopper, a lawyer for the Sacramento-based group. “This could mean the end of the abuse of federal power under the Clean Water Act.”

He noted that one of the parcels owned by Rapanos was 20 miles from a navigable stream.

Four years ago, the high court in a 5-4 decision said isolated ponds and lakes were beyond the reach of federal regulators. Before, the court has said wetlands that were adjacent to a navigable bay or rivers were protected.

The new case will decide the status of wetlands that are far from a navigable stream but whose waters can flow to a river or stream.

The timing of the court’s announcement caught the attention of lawyers. Last year, the justices turned away an appeal from Rapanos that challenged the severity of his sentence. In January, lawyers for the Pacific Legal Foundation filed his appeal challenging the reach of the Clean Water Act, but the high court took no action on it during the first half of the year.

On Friday, the justices met for the first time to go over pending appeals with Roberts leading the discussion.

When he was a judge on the U.S. appeals court, Roberts wrote a dissent to highlight the case of the “hapless toad” that lived in a dry canyon near San Diego. In that case, as well as in the ones now before the court, the question was whether federal environmental regulators had the authority to block development in the area.

The toad was protected by the Endangered Species Act. The wetlands are protected by the Clean Water Act.

In their appeal on behalf of Rapanos, the Pacific Legal Foundation asked the court to either limit the reach of the Clean Water Act to true navigable waters or to declare that federal regulators had overstepped their constitutional authority.

“We’re a bit surprised the court took this case, but we have a new court with judge Roberts,” Hopper said.

But other lawyers noted that the lower courts were split on the reach of antipollution regulators, and said the justices were obliged to resolve the issue sooner or later.

The Rapanos case will be heard early next year. A second case, to be heard at the same time, concerns a condominium developer who wants to build on wetlands near Detroit. Water cannot flow from the wetlands area because of a manufactured barrier, but a lower court said federal agents had authority over the land nonetheless.

Regardless of the outcome, states like California will retain their own authority to protect wetlands. Even the opponents of federal regulation concede that states have considerable powers to regulate land use and to protect the environment.

“We have strong protections for wetlands along the coastal zone in California,” said Marcia Hanscom, executive director of the Wetlands Action Network in Los Angeles. The state courts in a case involving the Bolsa Chica wetlands in Orange County said wetlands and sea marshes could not be destroyed, she noted.

But that protection for the environment does not extend inland.

“In the West, we have isolated wetlands that are dry for much of the year,” she said. Those areas could be affected by the upcoming high court cases, she said.

A third case from Maine tests the federal government’s power to prevent pollution of water that passes through dams or pumping stations. U.S. agents may require permits of those who “discharge” water into a stream, but it is not clear whether water passing through a dam or pumping station amounts to a discharge.