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From February 22, 2006                                                                                                        

Clean Water Act Cases Go Before Supreme Court
(Beyond Pesticides, February 22, 2006
) The Supreme Court will hear two cases with immense consequences for federal clean water protections this week. Both cases were brought by Michigan developers who were unable to build on parcels of land when they were denied Clean Water Act (CWA) permits. These legal challenges amount to a frontal attack on the scope of the CWA; if successful, more than half the streams and wetlands now covered under the CWA could lose federal protection.

At issue is the definition of "navigable waters," which the CWA puts under federal jurisdiction. The CWA makes it illegal to discharge pollutants without a permit into the "navigable waters of the United States." In issuing regulations, the U.S. EPA and Army Corps of Engineers have interpreted the term broadly, to cover even upstream waters with no hydrologic connection to navigable streams and rivers. Such regulations have been vital to improvements in water quality in recent decades, and even the Bush administration supports EPA's expansive interpretation. Developers and property-rights groups, however, have long worked to narrow the law's scope. Additionally, this case is of particular interest as it is the first environmental ones to come before the recently realigned Roberts/Alito court.

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

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. Rapanos’s case was being considered by the justices yesterday.

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. 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.

Environmentalists fear that a win for Rapanos or Carabell could dramatically cut back one of the nation's most effective anti-pollution laws.

Source: AP, http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2006/02/21/national/w123910S03.DTL