Justices Nearly Drowned in Clean Water Act Cases

By Correy E. Stephenson

The following article was originally published in Lawyers Weekly USA, a sister publication.

BOSTON – In the first oral arguments before the newly constituted U.S. Supreme Court, the Justices nearly drowned in the Clean Water Act when they heard multiple cases concerning the statute.

The act prohibits the discharge of pollutants – which includes fill material – into navigable waters without a permit.

In a pair of consolidated cases from Michigan, Rapanos vs. U.S. and Carabell vs. U.S. Army Corps of Engineers, two property owners sought to fill in wetlands on their property.

June Carabell’s application to construct a condominium complex on her property was denied. The Army Corps of Engineers determined that unconnected wetlands and a berm – a man-made ditch that abutted a nearby lake – were still connected to navigable waters under the Clean Water Act.

John Rapanos filled in and dredged multiple wetlands on his property to build a shopping mall. Because he circumvented the permit requirement, he was convicted of violating the act. The conviction was thrown out on appeal, but he was then fined $185,000 and sentenced to community service and probation.

The government alleged that the wetlands were protected and that Rapanos failed to obtain the proper permits to fill them and didn’t comply with cease and desist orders issued by the Environmental Protection Agency. It brought a civil action against him.

In the first environmental case before Chief Justice John Roberts – and the first oral argument for Justice Samuel Alito – Rapanos and Carabell argued that the federal government doesn’t have jurisdiction to regulate certain wetlands that are adjacent to tributaries of navigable waters.

This is a case about an agency overreaching, San Francisco attorney M. Reed Hopper, who represented Rapanos on behalf of the Pacific Legal Foundation, told the Justices, describing the Army Corps of Engineers’ argument as an attempt at limitless jurisdiction.

On the other hand, Paul Clement, arguing on behalf of the U.S. Army Corps of Engineers, appeared to face an uphill battle convincing the court – especially Justice Antonin Scalia – that the Corps should have such broad powers.

Hopper told the court that the Clean Water Act should be applied only to tributaries and wetlands if they reach navigable waters.

The agency is trying to regulate everything, from the smallest trickle to the largest watershed, he contended.

Hopper argued that wetlands abutting navigable waterways could be included in the Corps’ jurisdiction but that tributaries should not.

Alito wasted no time in asking his first question, wondering why any wetlands abutting a navigable waterway would be covered, but a tributary leading directly into a waterway wouldn’t.

Is that fair? he asked.

Hopper replied that the regulation of tributaries infringed upon the power of states.

Justice David Souter expressed concern that such a rule would allow evil polluters to trek further upstream to a tributary to dump their toxins and avoid prosecution under the act.

But Hopper emphasized that the act was intended to leave states with the power to prosecute polluters and to usurp the states’ abilities would create major constitutional issues.

An expansive interpretation destroys any distinction between federal and state, he argued. All the states have anti-pollution laws.

On behalf of Carabell, Timothy A. Stoepker, a partner at Dickinson Wright in Detroit contended that a hydrological connection must be established for jurisdiction to result.

Justice Anthony Kennedy asked whether there would be a connection after building was completed on the property.

Stoepker admitted a connection might arise but insisted that jurisdiction must be established and a hydrological connection between the wetlands and the body of water must exist prior to development.

But Justice John Paul Stevens wasn’t satisfied, wondering if a permit could be denied based on the possibility of a future connection to a navigable waterway.

Doesn’t that mean that Congress passed a law locking the barn after the horse was stolen? he asked.

Stoepker replied that Congress reserved the primary responsibility to regulate pollution to the states.

Clement, on behalf of the Army Corps of Engineers and the U.S. government, immediately faced Scalia’s skepticism about the Corps’ jurisdiction over ditches and storm drains.

Clement sought to discourage the justices from making distinctions between natural and man-made bodies of water.

After all, the Erie Canal is But Scalia remained unconvinced.

Under your theory, the Corps of Engineers would have jurisdiction over any land if at some point it drains into the tributary system, he said.

The Corps has regulated channelized waters and tributaries going back to 1899, Clement countered, citing a 19th century law.

He then proposed an alternate means to evaluate when the Corps has jurisdiction: First, determine whether tributaries are covered, and second, determine whether the water at issue has a hydrological connection to navigable waters.

But Scalia returned to the storm drains.

This would be an immense scope of jurisdiction for the Corps of Engineers, he said. It intrudes too deeply into state power to regulate the land.

Seeing he was making little progress with Scalia, Clement asked the other justices to look at the legislative history, which supported his interpretation of broad jurisdiction.

He also noted that the Corps’ ability to regulate is directly linked to the EPA’s ability to prosecute offenders.

There are real-world consequences to contracting the Corps’ jurisdiction, he said, including creating a free dump zone for those who could no longer be prosecuted by the EPA.

A decision from the court is expected later this term.