From: Ken Thomas, Associated Press
Published February 22, 2006 12:00 AM

Supreme Court Raises Concern over Limiting Coverage of Clean Water Act

WASHINGTON — The Supreme Court wrestled Tuesday with how far upstream the government should extend protections of the Clean Water Act, a case that could affect millions of acres of wetlands.


The justices, in two Michigan wetlands cases, are seeking to clarify whether building projects can be barred from property adjacent to tributaries that dump into waterways protected by the 1972 law or are separated from protected waters by a man-made berm.


Justice David Souter, questioning the attorney for property owner John Rapanos, suggested that limiting the law's reach could allow an "end-run around the regulation" by polluters.


"All you have to do is dump the pollutant upstream far away from the watershed and you get away scot-free," Souter told Sacramento attorney M. Reed Hopper.


But Chief Justice John Roberts and Justice Antonin Scalia questioned whether an overly broad interpretation of the law might give regulators jurisdiction over storm drains and ditches.


"To call that waters of the United States seems to be extravagant," Scalia said.


Roberts told Solicitor General Paul Clement "at some point the definition of tributary has to have an end" or it would go beyond the intention of Congress.


Justice Samuel Alito made his debut during the arguments, asking Hopper what would constitute a tributary about three minutes into the hearing. Alito was otherwise silent, listening intently to the attorneys and occasionally sipping from a silver chalice.


The Clean Water Act requires landowners to receive a permit from the U.S. Army Corps of Engineers before filling in waterways. The Corps has generally received wide latitude to prevent wetland degradation from regulations and court rulings.


But in a 2001 ruling, the Supreme Court excluded "isolated" wetlands that don't cross state lines and have no hydrological connection to navigable waters. In that case, the court sided with Chicago-area suburbs that wanted to build a landfill atop abandoned gravel pits that had filled with water and were being used by migratory birds.


The Michigan cases involve Macomb County wetlands adjacent not to navigable waterways themselves but to their tributaries. A woodlot owned by June Carabell is a mile away from Lake St. Clair while the properties controlled by Rapanos are about 20 miles from a river that empties into Lake Huron. Carabell has hoped to build condominiums while Rapanos wanted to build a shopping mall.


Several justices expressed concern. Justice John Paul Stevens and Souter questioned allowing discharges on land with barriers such as berms that would eventually be eliminated or altered during construction.


"Then Congress has passed a law which says, 'We'll lock the barn after the horses go,'" Souter said.


Justice Ruth Bader Ginsburg raised the difficulty the government would face in determining which bodies of water should be regulated and which should not. "Where would you put the line?" she asked.


Hopper, asked by Ginsburg whether it should apply to major tributaries, contended that "Congress cannot regulate all tributaries" and that allowing the Army Corps to regulate all of them would raise significant constitutional concerns.


"Anywhere water flows is a tributary in their book," Hopper said.


The cases are John A. Rapanos v. United States, 04-1034, and June Carabell v. United States Army Corps of Engineers, 04-1384.


Source: Associated Press


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