SUPREME COURT CASES COULD THREATEN SCOPE OF CLEAN WATER ACT

On February 21, the Supreme Court will hear two cases that could undermine federal protection of the vast majority of our nation's streams, wetlands, ponds and other waters. In one of the cases, the petitioner maintains that the 1972 Clean Water Act protects only "traditional navigable" waters (those suitable for use by commercial vessels) and those wetlands and streams that are directly adjacent to those waterways. This radical position -- which the Bush administration's Justice Department is opposing -- contradicts how the act has been applied for more than 30 years.

What waters are at risk? Here are just a few examples:

• Surface waters that are estimated to provide drinking water for more than 110 million people, including Mid-Atlantic surface drinking water sources that serve 535,000 to 3 million people;
  
  
• At least 20 million acres of wetlands in the lower 48 states that are critical for water quality improvement, flood storage, migratory bird habitat, and fish and shellfish nursery grounds;
  
  
• Fifty-three to 59 percent of the total length of U.S. streams (excluding Alaska); and
  
  
• Larger lakes, rivers and coastal waters that would be polluted by upstream sources.

With so much at stake, these cases have generated an unprecedented groundswell of support for maintaining the integrity of the law. Four former Environmental Protection Agency (EPA) administrators; nine members of Congress who helped create the Clean Water Act; attorneys general from 33 states plus the District of Columbia, the Pennsylvania Department of Environmental Protection and the International Association of Fish and Wildlife Agencies; more than 30 local and national conservation, environmental and public health organizations; more than a dozen outdoor recreation organizations and businesses; and others have filed amicus (friend of the court) briefs with the Supreme Court in favor of upholding Clean Water Act protections for all waters of the United States. (For a list of, and access to, all the briefs, click here.)

The attorneys general brief reminds the Supreme Court of the federal law's role in safeguarding public health and clean water. "[O]ver the last 30 years," they wrote, "the states have relied on broad Clean Water Act coverage to protect the health of their citizens and environments." Many states' water laws are tied to the federal Clean Water Act, and some states rely exclusively on federal law to protect wetlands or to give them the authority to implement specific programs. That means a drastic rollback of the law to cover only traditionally navigable waters could leave most waters unprotected from pollution by any law.

These two cases are the most important Clean Water Act cases to come before the Supreme Court since the law was passed 34 years ago. In addition, the oral arguments in these cases will be the very first heard by Justice Samuel Alito, and the first significant environmental cases heard by Chief Justice John Roberts.

Case Background: Appeals Court Reaffirms Scope of Law

Last October, the Supreme Court agreed to hear two consolidated Clean Water Act cases, Carabell v. United States and Rapanos v. United States , both on appeal from the Sixth Circuit Court of Appeals. The petitioners are developers planning construction projects in Michigan. In one case ( Carabell ), the petitioners' condominium development would destroy nearly 16 acres of wetlands, and in the other ( Rapanos ), the developer already has filled in several wetland areas to make way for roads, a shopping center, and other development.

The outcome of these cases will determine whether the Clean Water Act was intended to protect tributaries that flow into larger waters and wetlands adjacent to such tributaries. In both cases, the appeals court affirmed Congress' intent to protect these waters. The petitioners now are trying to convince the Supreme Court to reverse the Sixth Circuit decisions, and one petitioner -– Rapanos -– argues that the act does not -- and constitutionally cannot -- protect any waters other than "traditional navigable" waterways and those wetlands and streams that abut them.

The two appeals court decisions are overwhelmingly consistent with Clean Water Act case law. In 1985, the Supreme Court ruled unanimously in a case very similar to them, Riverside Bayview Homes v. Army Corps of Engineers, that the act protects wetlands adjacent to waters of the United States. Even after the Supreme Court's 2001 Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers decision -- which ruled that the Clean Water Act does not cover ponds formed by abandoned sand and gravel pits that are connected to other waters only because they are used by migratory birds -- a majority of courts have reaffirmed the act's broad scope.

Unlike the ponds in SWANCC, which did not share proximity, or demonstrated hydrological or ecological connections (beyond migratory bird use) with other waters, the two cases now before the Supreme Court involve tributaries to larger waterbodies (specifically, the Great Lakes), and wetlands adjacent to those tributaries.

Key Questions for the Supreme Court

In Carabell and Rapanos, the Supreme Court will address two key questions: Did Congress intend to protect tributaries of larger waters, and wetlands adjacent to those tributaries? If so, does Congress have constitutional authority to do so under its power to regulate interstate commerce? The Justice Department will be arguing for the court to affirm the Sixth Circuit decisions that the Clean Water Act protects the tributaries and wetlands at issue, consistent with the language of the statute and congressional intent, and that it is well within Congress' constitutional power to do so.

The Intent of the Clean Water Act

The law now known as the Clean Water Act was adopted as the Federal Water Pollution Control Act Amendments of 1972. With the passage of this law, Congress made a national commitment to control and eventually eliminate water pollution. The very first sentence of the statute states: "The objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters."

Congress gave the EPA a broad mandate to protect the "waters of the United States" to achieve the law's goals. In defining the scope of the 1972 law, Congress used the term "navigable waters," which it borrowed from older statutes, but then expanded protections beyond the limit of traditional navigable waters. Under the new law, the term "navigable waters" was defined as "waters of the United States."

As the House Public Works Committee stated: "The Committee fully intends the term 'navigable waters' be given the broadest possible constitutional interpretation unencumbered by agency determinations which have been made or may be made for administrative purposes." Meanwhile, the Senate Committee on Public Works stated in its report: "Through a narrow interpretation of the definition of interstate waters the implementation of 1965 Act was severely limited. Water moves in hydrologic cycles and it is essential that discharges of pollutants be controlled at the source."

The debate in both the House and Senate on the act's final passage confirmed the conference report's intent that the law be applied broadly. For example, Rep. John Dingell (D-Mich.), who delivered the conference committee bill to the House, explained:

The conference bill defines the term "navigable waters" broadly for water quality purposes. It means all "the waters of the United States" in a geographical sense. It does not mean "navigable waters of the United States" in the technical sense as we sometimes see in some laws. Thus, this new definition clearly encompasses all water bodies, including main streams and their tributaries, for water quality purposes. No longer are the old, narrow definitions of navigability, as determined by the [Army] Corps of Engineers, going to govern matters covered by this bill.

Thus, with overwhelming, bipartisan support, Congress adopted a broad scope for the law to protect "waters of the United States" as necessary to clean up the nation's waters.

The notion that tributaries of larger waters are beyond the reach of the Clean Water Act is especially absurd. Such tributaries were expressly covered under the 1899 Refuse Act, the predecessor to the 1972 act's core permit program. It is untenable to assert that Congress, when adopting the 1972 law that the Supreme Court has emphatically described as "comprehensive" and "all-encompassing," actually intended to cut back on the coverage of the predecessor law from the 19th century.

Congress' Commerce Clause Authority to Prevent Water Pollution

Protecting tributaries and their adjacent wetlands not only furthers congressional intent embodied in the Clean Water Act, but also is well within Congress' Commerce Clause power. In fact, protecting these waters is necessary to achieve many goals embodied in the act itself, which the Supreme Court has previously recognized as legitimate grounds for exercise of Congress' Commerce Clause power. These include:

• Protecting "traditional navigable waters" from pollution flowing downstream from upstream waters;
• Avoiding unequal regulatory approaches that would give upstream dischargers an unfair advantage over their downstream competitors;
• Maintaining uniform national standards to prevent any destructive competition between states to relax water quality standards (a "race to the bottom"); and
• Safeguarding economic interests, such as public water supplies, fisheries and recreation.

Contrary to the petitioners' suggestion, application of the act's permit safeguards to tributaries and their adjacent wetlands does not raise any real Commerce Clause concerns -- especially in situations such as Carabell and Rapanos where the proposed activities themselves are unquestionably economic in nature (as is true with almost all activities that require a permit to discharge pollution into water).

Open-and-Shut Case

The clear language and legislative history of the Clean Water Act, the weight of three decades of its enforcement and consistent judicial interpretation, and the strong state interest in maintaining the role of the law should make this an open-and-shut case. But considering what is at stake, it is dangerous to take anything for granted. Soon we will see if a majority of the Supreme Court will follow years of settled law and precedent or undermine longstanding environmental and public health protections.