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Groups Fear Fallout From Supreme Court Cases: Limitation of Clean Water Act's Scope Could Spell Trouble for Ohio Wetlands

Posted on: Monday, 27 February 2006, 12:00 CST

By Dave Golowenski, The Columbus Dispatch, Ohio

Feb. 26--An alliance of businesses and conservation groups, including heavy hitters Ducks Unlimited and the National Wildlife Federation, have expressed concern about an upcoming U.S. Supreme Court decision in two cases involving at least half of the nation's streams and wetlands. Arguments were heard last week.

The groups have filed an amicus brief in the case, meaning they have presented written information designed to advise the justices before making a decision, which will be rendered later this year. The groups were joined in the brief by a number of states that see little benefit in removing federal protection from much of the water within their boundaries.

Ohio could be among the states most affected, particularly if a bill recently introduced into the Ohio General Assembly should become law. The bill, SB 264, was introduced by three Republican senators -- Timothy J. Grendell (Chesterland), John Carey (Wellston) and Patricia Clancy (Cincinnati) -- would prevent Ohio from holding environmental standards stricter than federal standards.

"The bill set off alarms for us," said Keith Dimoff, deputy director of the Ohio Environmental Council.

Ohio has designated certain streams as worthy of special protection that rises above Clean Water Act standards, Dimoff said. Such waterways can act as incubators for fish and other wildlife, so sportsmen are apt to lose out if those standards are relaxed.

Couple a state law that essentially would prevent Ohio residents from protecting waters as they see fit with the possibility of a Supreme Court decision that would remove a large portion of the state's waters from federal protection, and a formula exists for pollution levels not seen in a generation.

At issue in the high court in the pair of consolidated cases emanating from Michigan, Rapanos v. U.S. and Carabell v. U.S., is whether federal protection under the Clean Water Act extends to streams that flow into larger water bodies and to wetlands neighboring those streams.

Lower courts have upheld federal protection for such streams and wetlands. Opponents of protections argue that federal law can extend only to navigable waters, while what is permitted in non-navigable water falls under the authority of the states. The Grendell-Carey-Clancy bill, though, would effectively surrender that local authority in order to match federal law.

The high court's decision potentially will affect development on millions of acres of wetlands on which wildlife depends and put many fish-producing river systems at higher risk.

Why do feeder streams and wetlands matter? Because water flows downhill.

"If the Supreme Court reverses the lower court decisions, it would be like saying you cannot cut down a tree but are free to poison its roots," James Murphy, an attorney for the wildlife federation, said in a statement. "Such a ruling by the court would be an enormous setback for the health of all waters."

Five years ago, in a 5-4 decision, the high court dealt conservationists a setback when it ruled that the Clean Water Act does not protect wetlands that shelter migratory birds where a connection to navigable waters cannot be shown. According to data released by the U.S. Army Corps of Engineers, some 14,000 to 20,000 acres of wetlands have been opened to development during the past two years.

Ohio is among the top 15 states in wetlands loss as a result of that court decision. Using a longer framework, because of agriculture and development the state has only about 10 percent of its original wetlands remaining.

Conservation groups say a reversal of the lower court rulings in the Michigan cases would be vastly more harmful to fish and wildlife than the earlier decision.

"Any negative ruling by the Supreme Court would be disastrous," Murphy said. "Over 90 percent of waters in certain areas currently protected by the Clean Water Act would be at risk if the court endorses the most narrow view of the act's scope."

The Bush administration contends that Congress intended to protect tributaries and adjacent wetlands under the Clean Water Act when it was passed in 1972. However, the two Bush appointees to the high court, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., have showed in the past a tendency to rule against the extension of federal powers.

outdoors@dispatch.com

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Copyright (c) 2006, The Columbus Dispatch, Ohio

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Source: The Columbus Dispatch, Ohio

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