[env-trinity] Water Wars Await Alito
emelia at trailofwater.com
Tue Feb 21 08:21:01 PST 2006
One hopes the Judges have read the Mono Lake case ....
On Feb 20, 2006, at 3:48 PM, Patrick Truman wrote:
> Water wars await Alito in debut on high court
> Future of nation's rivers, wetlands hinges on 2 key cases
> Bob Egelko, Chronicle Staff Writer
> Monday, February 20, 2006
> Printable Version
> Email This Article
> Samuel Alito will make his Supreme Court debut with a splash this
> week when the justices hear two cases that could determine the
> future of the Clean Water Act.
> The cases, both from Michigan and scheduled for hearing on Tuesday,
> could have an enormous impact. For property-rights advocates, an
> unfavorable ruling could spread the shadow of federal regulation
> over every tiny stream and rivulet in America, stifling development.
> Federal authority would extend to "virtually every body of water in
> the nation -- every brook and pond, every dry wash -- that has any
> connection with navigable waters, no matter how remote," warned a
> coalition of water suppliers, farmers and the states of Alaska and
> Utah in one of more than 50 briefs filed with the court.
> For environmentalists, a loss would strike at the heart of the
> nation's water resources.
> Federal agencies would be powerless to prevent "the discharge of
> sewage, toxic pollutants and fill into ... the large majority of
> our nation's rivers, streams and other waters," said clean-water
> agencies from two-thirds of the states, including California.
> The two lawsuits challenge the federal government's power to
> prevent landowners from filling and developing wetlands -- marshes,
> ponds, drainage ditches or small streams -- that have some
> connection with a distant river or lake.
> Lower courts ruled in both cases that the Clean Water Act of 1972,
> which allows federal agencies to prevent pollution of navigable
> waters, regulates the filling of small wetlands that impact larger
> waterways, even those many miles away.
> Property-rights groups argue that "navigable waters" must be
> interpreted to mean only rivers, streams and lakes that can be
> navigated by boat, or adjacent wetlands that significantly affect
> navigation or commerce on the larger waterways.
> The cases return the court to an issue it left unanswered in 2001,
> when it ruled 5-4 that the Clean Water Act did not give the
> government authority over wetlands that were used by migratory
> birds but were isolated from navigable rivers and lakes.
> The wetlands in the Michigan cases belong to a larger category of
> waters that are "hydrologically" connected to navigable waterways
> -- that is, they are part of the same water system.
> The two cases, which will be heard together, are the first on the
> Supreme Court calendar for Alito, a veteran federal appeals court
> judge who won Senate confirmation last month to succeed the
> retiring Justice Sandra Day O'Connor. They will also be the first
> environmental cases for Chief Justice John Roberts, President
> Bush's other appointee, who was seated in October.
> Conservation groups opposed both nominations, largely because of
> past rulings by Alito and Roberts that appeared to take a narrow
> view of Congress' power to regulate interstate commerce, the
> constitutional underpinning of federal environmental laws. Alito
> also took part in appeals court rulings that rejected a federal
> agency's water cleanup plan and limited private citizens' ability
> to challenge water pollution under the Clean Water Act.
> The Bush administration, which proposed limiting federal authority
> over wetlands in 2003 but backed off in the face of state
> opposition, is supporting the government's regulatory power before
> the court. A ruling is due by the end of June.
> Like many Supreme Court cases, these are small-scale disputes with
> big implications.
> One landowner, John Rapanos of Midland, Mich., filled 50 acres of
> wetlands with sand in the 1980s so he could offer the property for
> sale to a shopping mall developer. The land is 20 miles from
> Saginaw Bay but is linked to it by ditches and streams. Rapanos was
> convicted in 1995 of a criminal violation of the Clean Water Act
> and could face a prison sentence if the Supreme Court rules against
> Developers June and Keith Carabell were stopped by federal
> regulators from building a condominium complex on land near Mount
> Clemens, Mich., that includes 16 acres of wetlands. A berm, or
> earthen mound that impedes water flow, separates the swampy acreage
> from a drainage ditch that leads to a creek and a lake about a mile
> What happens in their cases could affect much of the 100 million
> acres of wetlands in the United States.
> Ecologically, wetlands serve multiple functions: They filter
> pollutants from storm runoffs, limit flooding by absorbing water
> from heavy rains, and provide habitat for fish and wildlife.
> If the Clean Water Act, which protects navigable waters, is
> interpreted to allow widespread degradation of wetlands, "it would
> be like saying you cannot cut down a tree, but are free to poison
> its roots," said attorney James Murphy of the National Wildlife
> Federation, one of numerous conservation groups taking part in the
> But property-rights groups say the issue is not whether sensitive
> waters should be protected but who -- the federal government or the
> states -- should do the protecting.
> "This case is about the federal government overstepping its
> authority, not about whether our water will be clean," said
> Rapanos' lawyer, Reed Hopper of the Pacific Legal Foundation in
> Sacramento. If federal authority was limited, he said, wetlands
> would still be "subject to vigorous protections imposed by states."
> Most state governments disagree. Only one-third of the states,
> including California, have their own full-scale wetlands protection
> programs, and few states are likely to step in if federal
> regulation is withdrawn, state clean-water agencies said in court
> They said the reasons are both financial and political --
> protecting resources can be expensive, and often yields to "the
> inevitable competition for jobs and economic growth."
> When the court barred federal regulation of isolated wetlands in
> 2001, states that tried to fill the gap found that developers'
> bulldozers moved more quickly than regulators, the state agencies
> But that wasn't true in California, which expanded its wetlands
> program after the 2001 ruling, said Walnut Creek attorney Roderick
> Walston, a former state lawyer who now represents the water-supply
> agencies and two states seeking to narrow federal regulation.
> "States are perfectly capable of doing the job once the Supreme
> Court establishes the exact dividing point between federal and
> state regulation," he said.
> What it's about
> At stake: The power of the federal government to regulate wetlands,
> streams and canals that are connected to navigable waters, even
> wetlands that may be located miles from the waterways.
> The status: Oral arguments are scheduled for Tuesday at the U.S.
> Supreme Court.
> The cases are Rapanos vs. U.S., 04-1034, and Carabell vs. U.S. Army
> Corps of Engineers, 04-1384. E-mail Bob Egelko at
> begelko at sfchronicle.com.
> env-trinity mailing list
> env-trinity at mailman.dcn.org
-------------- next part --------------
An HTML attachment was scrubbed...
More information about the env-trinity