[env-trinity] Clean Water Act - LA Times

Byron bwl3 at comcast.net
Tue Feb 21 16:27:26 PST 2006


Justices to Study Scope of '72 Clean Water Act

Los Angeles Times - 2/21/06

By David G. Savage, staff writer


WASHINGTON - 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

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

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

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

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." 



Byron Leydecker

Chair, Friends of Trinity River

Advisor, California Trout, Inc

PO Box 2327

Mill Valley, CA 94942-2327

415 383 4810 ph

415 383 9562 fx

bwl3 at comcast.net

bleydecker at stanfordalumni.org





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