States, Enviros, Side with Feds on Supreme Court Clean Water Cases

WASHINGTON, DC, January 19, 2006 (ENS) - The attorneys general of 34 states plus the District of Columbia filed documents with the U.S. Supreme Court Friday in support of the Clean Water Act in three cases set to be heard next month. They expressed support for the Clean Water Act’s core safeguard - the requirement to obtain a permit before discharging pollutants into waters of the United States.

The number of states increased by one this week as Governor Edward Rendell Wednesday directed that Pennsylvania join the states in filing an amicus brief, or friend of the court brief, in the Clean Water Act cases. The Supreme Court is scheduled to hear these cases on February 21.

The issues at stake are whether the Clean Water Act protects wetlands adjacent to tributaries that flow into larger water bodies and adjacent wetlands, and, if so, whether the Constitution gives Congress the authority to protect them.

The first case, S.D. Warren v. Maine Board of Environmental Protection, could decide the scope of state government authority to mitigate the water quality impacts of hydroelectric dams and other federally licensed activities within their borders.

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Powder Mill-Gambo Falls in South Windham, Maine before it became a power station, about 1900. It was purchased by S.D. Warren in 1974. (Photo courtesy Warren Memorial Library)
Warren owns and operates five contiguous hydroelectric run-of-river dams that provide electricity to one of its paper mills. In renewing the hydroelectric licenses, the company applied for water quality certification under the federal Clean Water Act. In 2003, Maine’s board approved certification with conditions to mitigate the water quality impacts of the dams.

Warren appealed the conditions, claiming the state overextended its authority.

States have used their authority under the Clean Water Act to protect water quality, safeguard river ecosystems and restore fisheries. Stripping states of the ability to set conditions on the operations of hydroelectric dams would affect river health and water quality, threaten fish and wildlife habitat, and diminish recreational and economic opportunities on rivers across the nation, the states argue.

Two other consolidated cases, Rapanos v. U.S. and Carabell v. U.S. Army Corps of Engineers, could answer far reaching questions about how the federal government can use the Clean Water Act to restrict development on or near wetlands that provide habitat for aquatic species, help prevent floods and filter pollutants from waterways.

The cases involve Michigan wetlands. In the Rapanos case, the developer began filling in 54 acres of wetlands without a state or federal permit on three sites in Midland, Bay, and Saginaw Counties. The wetlands are connected to tributaries that flow into Lake Huron. Both criminal and civil actions were pursued by the federal government, and Rapanos was convicted of criminal violations of the Clean Water Act.

The case before the Supreme Court involves the civil enforcement action brought by the U.S. Environmental Protection Agency.

In the Carabell case, the developer wanted to build a 112 unit condominium on 19 acres of land in Macomb County by filling in about 15 acres of forested wetlands. The wetlands are adjacent to a tributary that flows to Lake St. Clair. The U.S. Army Corps of Engineers denied the permit. The developer brought suit alleging the wetlands were not covered by the Clean Water Act.

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Lake St. Clair (Photo courtesy Great Lakes Sea Grant Extension)
The key issue in the consolidated cases is whether or not the federal government can use the Clean Water Act to regulate the discharge of fill in or near wetlands adjacent to tributaries to navigable waters.

Under the Clean Water Act, it is illegal for anyone to discharge any pollutant into navigable waters or into wetlands and tributaries adjacent to navigable waters. Rapanos and Carabell are challenging how the government defines “adjacent” and how it interprets the hydrologic interconnectedness of water systems.

In their amicus brief, the states argue that many states’ water quality programs are tied to federal definitions and authority, so any changes to the definitions of waters at the federal level may compromise implementation of important state programs, which in some cases have taken years to reach their current level of effectiveness and understanding by the public and the regulated community.

Michigan Attorney General Mike Cox said the states' brief supports the federal government's arguments that Congress intended the Clean Water Act to cover wetlands adjacent to tributaries.

"Michigan is the Great Lakes State," Cox said. "But those lakes will only stay great if we protect the rivers, streams, and wetlands that flow into them."

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Michigan Attorney General Mike Cox (Photo courtesy Office of the Attorney General)
"I am simply asking the Supreme Court to uphold the status quo and continue the long-standing and common sense interpretation of the Clean Water Act," Cox said.

“Pennsylvania has a direct stake in the outcome of these cases because of the significant effect they could have on our ability to protect water supplies and keep our rivers and streams free from pollution,” Governor Rendell said.

“It’s vital that we participate in these cases and fight to uphold the protections in the federal Clean Water Act to ensure that Pennsylvania has at its disposal all the tools necessary to protect public health and the environment in the years ahead,” said DEP Secretary Kathleen McGinty said.

Also on January 13, a coalition of environmental and public health groups filed an amicus brief on the side of the U.S. government in the two consolidated Clean Water Act cases, Rapanos v. U.S. and U.S. v Carabell.

In the brief, the groups argue for continued federal protection of streams and wetlands from pollution in the face of industry petitions asking the Supreme Court to eliminate decades of Clean Water Act safeguards for these waters.

“These cases pose the question whether the Clean Water Act regulates any discharges into the great majority of this country’s tributaries and adjacent wetlands - involving not just discharges of dredged or fill material, but also discharges of sewage, sediment and toxic chemicals such as cyanide from factories,” the groups wrote in their brief.

The nonprofit public interest law firm Earthjustice filed the brief on behalf of American Rivers, Environmental Defense, National Audubon Society, Natural Resources Defense Council, Physicians for Social Responsibility, Sierra Club, Tip of the Mitt Watershed Council and Waterkeeper Alliance.

These groups join an array of local, state, and federal government officials, hunting and fishing advocacy groups, scientists, and others from across the political and policy spectrums who all filed amicus briefs on January 13 urging the Supreme Court to maintain the longstanding protections offered by the Clean Water Act.

This group of interested parties includes four former EPA administrators and nine members of Congress directly involved in the passage of the 1972 Act and its reaffirmation in 1977.

In October, the Supreme Court agreed to hear these two cases challenging the definition of federally protected waters. In both cases, the developers are arguing that they can pollute - even destroy - the waters at issue without a Clean Water Act permit. They argue that their right to pollute is protected by the U.S. Constitution.

For 30 years, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers have rejected such arguments, and have correctly applied the Clean Water Act’s safeguards equally not only to large waterbodies where boats can travel, but also to tributaries of such waters and to wetlands adjoining those tributaries.

These streams and their adjacent wetlands that would go unprotected under the developers' view of the law are used for fishing, recreation, wildlife habitat, and drinking water supplies, as well as for filtering pollutants and helping prevent floods, Earthjustice said in a statement January 13.

Protection of tributaries was fundamental federal law long before the 1972 Clean Water Act, dating back at least to the 1899 Refuse Act, which barred discharge “into any navigable water of the United States, or into any tributary of any navigable water from which the same shall float or be washed into such navigable water.”