[env-trinity] Water Wars Await Alito

[Emelia Berol]

One hopes the Judges have read the Mono Lake case ....


On Feb 20, 2006, at 3:48 PM, Patrick Truman wrote:

> http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2006/02/20/ 
> MNGV3HBONN1.DTL
>
>
> 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
>
>
> Printable Version
> Email This Article
>
>
> 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.
>
> 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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