Justices to Study Scope of ’72 Clean Water Act

The Supreme Court will take up a property rights case today 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 are far from the nearest river or bay.

But to the surprise of environmentalists, the high 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.

Today, the high 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 the 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, 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.”

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% of the nation’s rivers and bays are safe for swimming and fishing, up from 36% 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% 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% of the acres are on private land. Besides Alaska, the states with the largest areas of wetlands are Florida, Louisiana, Minnesota and Texas.

In California, the court’s ruling will determine whether federal regulation extends to the thousands of miles of canals, ditches and streambeds, many of which are dry for most of the year.

In all, 34 states, including California, urged the court to maintain broad federal regulation over streams and wetlands.

But not all state and local officials are in agreement. Lawyers for the Metropolitan Water District of Southern California say that obtaining a federal permit can be a costly nuisance. The district operates aqueducts that bring water to Los Angeles.

“It seems a tad ridiculous that we have to get a ‘wetlands’ permit when we are working in the desert,” said Jeffrey Kightlinger, general counsel for the water district, which supplies drinking water to 18 million people in Southern California. It joined with seven other water districts in the West in arguing that the federal law should cover only actual pollution flowing into the waterways.

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 high 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.”

That ruling answered one question and raised another: What about the tens of thousands of tiny streams and inland wetlands that send water flowing toward the sea? Are they are covered by the Clean Water Act?

The Rapanos case, to be heard first today, poses that question directly.

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.

Her lawyers note that the parcel 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,” said Timothy Stoepker, a lawyer for Carabell.

Nonetheless, federal regulators refused to grant a permit to fill the wetland areas. Lower courts upheld the government decision because the property was near Lake St. Clair, a navigable waterway.

After the two wetlands cases, the high 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, including scores in Northern California.

The Federal Power Act gave federal energy regulators sole authority over the dams that generate electric power.

However, the Clean Water Act gave states a role in preserving the water quality in their rivers. State permits were required before anyone could add or discharge anything into the river. And state officials use this permitting power to force dam operators to maintain enough water flow to satisfy both fish and kayakers.

But the high court agreed to hear a challenge to this authority brought by the S.D. Warren Co., which operates five power dams in Maine. Its lawyers argue that water flowing through a dam is not a discharge, and therefore the states have no right to require a permit from them.

The court’s ruling on this legal question could have a crucial effect on America’s rivers, said Patrick Parenteau, an environmental law expert at the Vermont Law School.

“Without this permitting authority, the states are powerless to restore and improve the habitat for fisheries,” Parenteau said. “With it, they have a powerful lever.”