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Water act limits on high court agenda

Property rights - Three cases test federal power in protecting wetlands
Wednesday, October 12, 2005

WASHINGTON -- The Supreme Court agreed Tuesday to consider limiting the federal government's power to protect hundreds of millions of acres of wetlands.

After its first private conference led by Chief Justice John Roberts, the court said it would hear three cases that ask the justices to cut back on the reach of the Clean Water Act of 1972, the anti-pollution measure that led to the cleanup of streams, rivers and bays around the United States.

A defeat for the federal government could signal the beginning of a retreat from broad federal protection for the environment. Some conservatives and property rights activists have urged the court to be more aggressive in protecting landowners from environmental regulators.

The Clean Water Act gave federal regulators the power to prevent discharges into "navigable waters." That sometimes resulted in wetlands on private property that are miles from the nearest river or bay being declared off-limits to developers.

Environmentalists say the fight against water pollution cannot be limited just to the rivers and bays.

"All pollution flows downhill to the navigable waters that the government can and should protect. The debate is over how far upstream the U.S. can reach to protect those waters," said John Echeverria, executive director of the Georgetown Environmental Law and Policy Institute.

In the late 1970s, the Environmental Protection Agency and the Army Corps of Engineers adopted regulations that gave their agents power over distant ponds and wetlands. If these wetlands were polluted or destroyed, it could affect rivers and bays, the regulators said.

The Bush administration is defending the broad power of federal regulators to protect distant wetlands if they have a "hydrological connection" to a navigable body of water. This means that if some water flows at some time from the wetland to a stream, federal agents may prevent a farmer or developer from dredging or filling the wetland.

U.S. Solicitor General Paul Clement urged the justices to turn away an appeal filed on behalf of John Rapanos, a Michigan farmer who was hit with a prison sentence and $13 million in fines after he ignored regulators and filled in the wetlands on three pieces of land near Saginaw, Mich.

But the justices instead voted to hear the Rapanos case. His case began in 1988, and has become a cause celebre among property rights activists. Rapanos is represented by the Pacific Legal Foundation, a defender of property rights.

"Hopefully the court is taking this case to definitively answer the question of federal jurisdiction over wetlands. About 100 million acres could be affected by the decision," said M. Reed Hopper, a lawyer for the Sacramento, Calif.-based group. "This could mean the end of the abuse of federal power under the Clean Water Act," he added. He noted that one of the parcels owned by Rapanos was 20 miles from a navigable stream.

Four years ago, the court in a 5-4 decision said isolated ponds and lakes were beyond the reach of federal regulators. Before, the court said wetlands that were adjacent to a navigable bay or rivers were protected.

The new case will decide the status of wetlands that are far from a navigable stream but whose waters can flow to a river or stream.

In their appeal on behalf of Rapanos, Pacific Legal asked the court to either limit the reach of the Clean Water Act to true "navigable waters" or to declare that the federal regulators had overstepped their constitutional authority.

The Rapanos case will be heard early next year. A second case, to be heard at the same time, concerns a condominium developer who wants to build on wetlands near Detroit. While water cannot flow from the wetlands area because of a man-made barrier, a lower court said federal agents had authority over the land nonetheless.

A third case from Maine tests the federal government's power to prevent pollution of water that passes through dams or pumping stations. U.S. agents may require permits of those who "discharge" water into a stream, but it is not clear whether water passing through a dam or pumping station amounts to a discharge.

Oral arguments will take place in early 2006, and a decision is expected by July.




Page Updated: Thursday May 07, 2009 09:14 AM  Pacific

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