A test of US authority over waterways

A high court case Tuesday probes which bodies of water fall under the Clean Water Act - and federal oversight.

When June Carabell and her business partners decided to build condominiums on wetlands in Michigan's Macomb County, they knew they were in for a challenge.

But they had no idea their project would take them all the way to the US Supreme Court in what could become a landmark case over the scope of federal power to protect the environment.

The dispute is one of two cases consolidated for oral argument Tuesday examining just how far upstream the Clean Water Act (CWA) extends federal jurisdiction. Is it limited to lakes and rivers? Or does it include remote wetlands with no link to them? At stake: how broadly the clean water law will be applied nationwide and, potentially, whether a broad application of the law is consistent with the proper constitutional balance of power between the federal government and the states.

At the center of the dispute is a discrepancy between the words Congress used when it wrote the CWA and the regulations the US Army Corps of Engineers and Environmental Protection Agency wrote later to enforce the clean water law.

Congress said US jurisdiction would extend over all "navigable waters." EPA and Corps of Engineers regulations interpret the law as extending far upstream, even to waters with no hydrologic connection to a tributary of navigable waters.

"Through this authority, the Corps will effectively exercise a wide-ranging federal police power over all kinds of land use," writes Carabell's lawyer, Timothy Stoepker, in his brief to the court. "A saturated portion of a residential lawn, which is near a storm drain ... will come within the scope of the act, and the owners of such land will have to obtain permits from the Corps before making a variety of ordinary land-use decisions."

Upstream properties should be governed by state environmental and land-use regulations, Mr. Stoepker argues. The CWA, he says, covers only "navigable waters" and adjacent waters that are hydrologically connected.

Lawyers for the US government say the CWA imposes federal restrictions not just in navigable waters but upstream throughout the watershed. Its regulations reflect a reasonable interpretation of the CWA, says Solicitor General Paul Clement in his brief.

Environmentalists stress that if pollution, like water, flows downstream, federal jurisdiction should extend far enough upstream to control it or prevent it. "This is like saying you cannot cut down a tree but you are free to poison its roots," says Jim Murphy, wetlands counsel at the National Wildlife Federation.

The issue is being closely followed by environmentalists, sportsmen, and ecologists who favor maximum federal control over environmental issues as the best way to protect America's water resources. On the other side are developers, farmers, and various industry groups who complain that federal agencies are issuing sweeping regulations that have no relation to the law Congress passed.

The case is also important because it potentially extends to the constitutional balance of power between the states and the federal government.

Lawyers for developers say states have traditionally exercised primary power over land and water use. Environmentalists counter that Congress has the power under the Constitution's Commerce Clause to set national policy to protect the entire watershed.

Should the court address the constitutional issue, the matter might indicate whether the high court's newest members - Chief Justice John Roberts and Associate Justice Samuel Alito - will vote with the conservative wing and potentially revive the federalism revolution led by the late Chief Justice William Rehnquist, who emphasized states' rights.

"We would really see a radical shift in environmental regulatory schemes if that Commerce Clause ruling did come down," says Mr. Murphy of the Wildlife Federation.

The two cases the court will hear Tuesday are Carabell v. US Army Corps of Engineers and Rapanos v. United States.

The Carabell case involves an effort to build a condominium project on a 19-acre site classified as a wetland. Michigan officials were reluctant to allow Ms. Carabell to develop one of the last pieces of undeveloped property in the area. After Carabell agreed to reduce the size of the project and set aside nearly four acres as a wetlands-water retention area, state environmental officials approved the plan.

Federal officials disagreed. They moved to block the project, arguing that the land fell within federal jurisdiction and could not be developed without a CWA permit. They refused to issue a permit.

Carabell sued and lost at both the trial court and appeals court levels.

In their appeal to the Supreme Court, lawyers for Carabell argue that there is no flow of water from the Carabell tract. Water is retained on the property in part because of a man-made berm between the tract and a drainage ditch. Because there is no flow to a tributary of a "navigable water," there is no federal jurisdiction, her lawyers say.

The Rapanos case involves efforts by developers John and Judith Rapanos to build on three tracts in Michigan. Like Carabell, they challenge the assertion of federal authority over their land. The EPA claims CWA jurisdiction because each tract drains into a tributary that leads to "navigable waters."

"Congress did not intend the term 'navigable waters' to be given the broadest possible constitutional interpretation," writes M. Reed Hopper in his brief to the court.

The Supreme Court has addressed similar issues twice in the past 20 years. In 1985, it ruled 9-to-0 that CWA jurisdiction extends to wetlands adjacent to navigable waters. But it added that the justices were not expressing an opinion about whether jurisdiction extends to wetlands "not adjacent to bodies of open water."

In the second case, in 2001, the court ruled that the CWA does not cover an abandoned sand and gravel pit that had filled with water. The Corps of Engineers had claimed authority over the site, saying migratory birds used the ponds as habitat.

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