By Charles Lane
Washington Post Staff Writer
Wednesday, February 22, 2006; A06
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.
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.
