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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)

Of Rapanos's three parcels, one is close to the Pine River, a tributary of Lake Huron, and two are wetlands that drain into creeks that drain into two other rivers that flow into navigable waters.

During yesterday's special 80-minute session, the court also heard the case of June Carabell, whose 19 acres are about a mile from Lake St. Clair, but connected to it by a network of man-made ditches.

Still, said Timothy A. Stoepker, Carabell's lawyer, there is a man-made berm separating her land from the lakes, and therefore no "hydrological connection" between the two. The federal government has "usurped" the states' power over local land use, Stoepker said.

Chief Justice John G. Roberts Jr. pressed lawyers for the various parties to explain where they would draw the line. "How do you define a tributary?" he asked Clement. "Is it a culvert? A ditch?"

Clement answered that a tributary could be "any channelized body of water," man-made or natural."

But to Justice Antonin Scalia, that response simply showed that the government was pressing an excessive claim.

It was "absurd" and "extravagant," he said, to call a ditch "waters of the United States."

"Your theory would cover all the land" in the country," he told Clement.

Roberts seemed to agree, noting that "at some point the definition of a tributary has to end, otherwise you go too far and go beyond what Congress reasonably intended."

But Justice David H. Souter led the property owners' lawyers through a series of questions designed to show that their position would lead to implausible results.

By their argument, Souter noted, all a polluter needs to do is "get far enough upstream, and then Congress couldn't do anything about it."

Hooper said that was wrong because if pollutants actually enter navigable waters, Congress can regulate them.

But Souter said that "would totally thwart" the regulations, because a scientist would have to "trace every molecule" to find out who had dumped it.

Sitting on his first oral argument, Justice Samuel A. Alito Jr. was mostly silent. His only question was to Hooper, whom he asked: "Does it make sense to say that wetlands that abut tributaries are covered, but that major tributaries are not covered?"

Hooper denied there was any contradiction in his argument.

The cases are Rapanos v. U.S. , No. 04-1034, and Carabell v. US Army Corps of Engineers , No. 04-1384.

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