Supreme Court Hears Challenges to Clean Water Act

The Supreme Court hears arguments on Tuesday in two cases that could dramatically limit the reach of the Clean Water Act. The law has been credited with preserving the nation's waterways. But some landowners and developers say the regulations are too restrictive.

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This is MORNING EDITION from NPR News. I'm Steve Inskeep.

RENEE MONTAGNE, host:

And I'm Renee Montagne. The U.S. Supreme Court hears arguments today in a set of cases that could dramatically limit the reach of the Clean Water Act. That landmark environmental law, enacted 34 years ago, is widely credited with preserving and cleaning up the nation's waterways. It also has been a thorn in the side of developers, and some property owners.

NPR Legal Affairs Correspondent Nina Totenberg reports.

NINA TOTENBERG reporting:

The Clean Water Act, signed into law in 1972, gave the federal government new power to protect the nation's waterways, and to regulate hundreds of millions of acres of wetlands that feed into those waterways. Under the law, property owners are barred from filling or dredging wetlands without receiving a permit from either the federal government, or from a state government that's assumed the permitting duty.

The two cases being heard this morning both come from Michigan, one of two states that has undertaken the permitting process in cooperation with the federal government. The case that's become something of a cause celebra involves a developer named John Rapanos, who wanted to build a shopping center and housing development on 700 acres of heavily-forested wetland.

After Rapanos was advised by a state inspector that he would have to seek a permit, he hired a private consultant. When the consultant reached the same conclusion, Rapanos, according to a lower court finding, flew into a rage and ordered the consultant to tear up his report, an order the consultant refused to comply with. Still, Rapanos did not seek the permit. Instead he began bulldozing the land, resulting in the eventual loss of 58 acres of wetland.

For years, he ignored cease and desist orders from both the federal and state governments. Facing potentially millions of dollars in civil liability, he has continued to fight all the way to the Supreme Court, contending that Congress did not authorize such widespread federal regulation, and that, if it did, the Clean Water Act is unconstitutional.

Reed Hopper of the Pacific Legal Foundation represents Rapanos.

Mr. REED HOPPER (Attorney, Pacific Legal Foundation): The agencies are claiming that they can regulate any trickle of water. They got the largest water shed. The principle that Mr. Rapanos is standing on is that he has the right to be free from illegal and heavy-handed federal regulation.

Mr. DOUGLAS KENDALL (Spokesman, Water Pollution Control Public Interest Group): This is not a case of an overzealous government agency.

TOTENBERG: Douglas Kendall runs a public interest group that's filed a brief against Rapanos on behalf of the water pollution control authorities in every state.

Mr. KENDALL: The Army Corps of Engineers grants 99.7 percent of the permit applications submitted to them. Mr. Rapanos never even bothered to apply for a permit. This is a case of a rogue developer, who thinks he can ignore the rules that apply to every other American.

TOTENBERG: Congress, when it passed the Clean Water Act, prohibited discharges into the, quote, "navigable waters of the United States." The question before the Supreme Court now is, what does that term mean? The Bush Administration contends that Congress defined the term navigable waters as the waters of the United States, that it meant the term to be applied broadly, and delegated to the Corps of Engineers and the EPA broad rule-making and enforcement powers.

But, Reed Hopper contends that his client's land is not covered by the Clean Water Act, because it's 20 miles away from any traditionally defined navigable water.

Mr. JOHN RAPANOS (Land Developer, Michigan): For over 200 years in this nation, that term navigable waters of the United States has meant navigable, in fact, waters; waters that can be used as the highway for commerce, in which a boat can be floated.

Mr. JIM MURPHY (Spokesman, National Wildlife Federation): If that position were adopted by the court, the Clean Water Act would essentially become a nullity.

TOTENBERG: Jim Murphy of the National Wildlife Federation.

Mr. MURPHY: Ninety percent plus of waters would not be covered if that position were adopted.

TOTENBERG: To a large extent, this case is about wetlands. Wetlands are sometimes called the kidneys of the nation's waterways, because they clean and purify waters that flow into the nation's major bodies of water. Wetlands also act as sponges, absorbing flood waters, limiting natural disasters, and releasing those waters in times of drought.

But they are often miles away from the nearest big body of water. Even though Mr. Rapanos' land is miles and miles away from Lake Huron, it's undisputed that the water from his wetlands feed into creeks and rivers that are the roots of the Great Lake.

Again, Douglas Kendall.

Mr. KENDALL: It's fifth-grade ecology that says waters that flow into navigable waters must be protected if you're going to protect the navigable waters, and that's the principle that's at issue in this case.

TOTENBERG: But Rapanos' lawyer, Reed Hopper, counters this way.

Mr. HOPPER: Under the law, as interpreted by the Corps of Engineers and the EPA in this case, you can not dig a ditch without federal approval. That's an amazing usurpation of the power of the states to control local land and water use.

TOTENBERG: It is such a usurpation of state's rights, he contends, that if that is what Congress intended it's unconstitutional. The states, however, are largely supporting the federal government in this case, contending that regulating the quality of the nation's waters is a national problem, that one state cannot control what other states do, and that water inexorably water crosses state lines through rivers, streams, creeks and groundwater. In short, that water does not stop at a state's border.

Today marks the first time that the High Court's two newest justices, Chief Justice John Roberts and Justice Samuel Alito, will be hearing a major environmental controversy. So, the case is seen as a something of a bellwether, and a defeat for the federal government could signal the beginning of a major retreat from broad federal protection of the environment.

Nina Totenberg, NPR News, Washington.

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