Court Hears Water Act Arguments

John Rapanos of Michigan was fined $185,000 fine and faces three years' probation for filling in 54 acres of wetlands without a permit.
John Rapanos of Michigan was fined $185,000 fine and faces three years' probation for filling in 54 acres of wetlands without a permit. (By Marvin Joseph -- The Washington Post)
By Charles Lane
Washington Post Staff Writer
Wednesday, February 22, 2006

All water flows downhill to the sea. But at what point does it enter the federal government's jurisdiction?

That was the question at the Supreme Court yesterday, as the justices heard arguments in the first major environmental case of the Roberts Court era -- a test of the Clean Water Act that could determine the scope of federal authority over the development of wetlands nationwide.

As enacted in 1972, the landmark environmental legislation gave federal regulators the power to control the discharge of pollutants into "navigable waters." On the theory that what gets dumped upstream eventually winds up downstream, the government has interpreted that phrase to include not only large lakes and rivers, but also their smaller tributaries and wetlands near those tributaries.

The Bush administration, backed by environmental organizations and more than 30 state governments, says that any narrower interpretation would cripple the Clean Water Act. States alone could not do the job, the administration argues.

"It's a bit much to ask legislators in Minnesota and Wisconsin to restrict local development to protect water in Mississippi," Solicitor General Paul D. Clement told the court yesterday.

But property owners, backed by homebuilders, developers, farmers, ranchers and some water districts from the arid West, say that view would federalize every drop of water in the country, effectively putting Washington in control of development miles away from any recognizably navigable waters.

One such property owner is John Rapanos of Michigan, who filled in 54 acres of wetlands, some of which were 20 miles from the nearest navigable water, without asking for a permit. Rapanos has been slapped with a $185,000 fine and three years' probation as a result. He also faces civil penalties.

His lawyer, M. Reed Hopper of the Pacific Legal Foundation, a property-rights organization, told the justices yesterday that "this is a case of agency overreaching," in which the federal government "had claimed jurisdiction over an entire watershed from the remotest trickle" on up.

Complicating matters is a pair of Supreme Court rulings that point in different directions.

In 1985, the court ruled that the federal government could regulate wetlands "adjacent" to navigable waters.

But in 2001, it ruled that the federal government could not control waste-dumping in isolated water-filled depressions in Illinois. Migratory birds flocked there, the court ruled, but the ponds lacked a "significant nexus" to navigable waters.

The Michigan properties at issue yesterday fall between those two cases.

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