[env-trinity] Water Wars Await Alito

[Patrick Truman]

http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2006/02/20/MNGV3HBONN1.DTL




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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

        
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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 him. 

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 away. 

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 case. 

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 papers. 

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 said. 

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. 



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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. 
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