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High Court Hears Challenge to Clean Water Act


From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.


And I'm Melissa Block. Today the Supreme Court heard arguments in a case that could dramatically limit the scope of one of the nation's landmark environmental laws, the Clean Water Act. With two new Justices hearing their first environmental matter, today's case is considered something of a bell weather as NPR's Nina Totenberg reports.


The Clean Water Law enacted in 1972 is widely credited with preserving and cleaning up the nation's waterways. But, it's been a burr under the saddle of developers and some property owners because it requires them to get a permit for filling and dredging wetlands that empty into navigable waters and their tributaries. Although more than 97 percent of permit applications are granted, the process can be cumbersome and expensive. The case heard today involves a Michigan developer named John Repanos who wanted to build a shopping center and housing development on 700 acres of heavily forested wetland.

Although the Federal Government, the State of Michigan and a private consultant Repanos hired, all told him he needed a permit, he never applied for one and went ahead for years bulldozing and dredging in violation of cease and desist orders from both the state and Federal governments. Today on the steps of the Supreme Court he remained defiant.

Mr. JOHN REPANOS (Developer, Michigan): The Federal Government is trying to take over the whole country and if they do all of us will lose. We will all lose if the Federal Government gets away with this.

TOTENBERG: Inside the courtroom, the Justices seemed closely divided as Reponos's lawyer Reed Hopper contended that Congress only intended to regulate the nation's navigable waters, that is waters used for commerce and on which a boat can be floated. The law, he argued, does not cover tributaries that flow into those waters or the wetlands that flow into those tributaries. Yes, he conceded, the court 20 years ago ruled that wetlands that abut navigable waters are covered, but not, he maintained, wetlands that flow into those tributaries.

Justice Alito, in his first question as a Justice, interrupted: does it make any sense to say that a wetland that abuts a navigable waterway is regulated, but not a tributary that flows into that navigable water?

Justice Souter, otherwise an evil polluter would just have to go far enough upstream to put pollutants in the water.

Answer, That's not true, if a discharge gets into the water then it can be regulated.

Justice Souter, incredulous. You mean a scientist would have to analyze the pollution and prove through tracing it back, where it came from?

Answer, Yes.

Arguing the other side was Solicitor General Paul Clement, representing the Federal Government, which in this case is backed by most of the states. Almost immediately, Clement was set upon by the tandem team of Justice Scalia and Chief Justice Roberts.

Roberts, how do you define tributary? After all a non-navigable tributary can be a ditch.

Answer, the Corps of Engineers defines a tributary as any body of water that drains into navigable waters. A ditch makes it sound insignificant, but the Erie Canal is a ditch.

Justice Scalia, a man-made ditch or a gutter, that's a tributary under your definition?

Answer, the difference between a man-made ditch and a natural channel is irrelevant.

Justice Scalia, What percentage of the country is covered under your definition? The entire country, isn't it?

Answer, the Corps and the EPA cover 80 percent of the country's wetlands, not its land mass. The purpose of the Clean Water Act, said Clement is to protect from pollution the waterways that are hydrologically connected.

Chief Justice Roberts, but at some point, the definition of tributary has to have an end. Under your definition you would be regulating wetlands that flow into wetlands that flow into wetland.

Justice Kennedy, it seems to me you have to show some significant connection.

Chief Justice Roberts, You would say a wetland next to a tributary that has one drop of water a year, that that's a significant nexus and thus the Federal Government has jurisdiction.

Answer, I would say one drop, okay, that puts it within Federal jurisdiction, but then grant the permit. What you call drains and ditches though are often significant channels of water that feed into tributaries. Congress has been regulating tributaries since 1899, said Clement, and if you say now that it can't, then you'd be saying that it's perfectly okay to dump toxins into them. Other solutions, he said, have been tried and failed.

This case, he told the court has real world consequences. If you narrow the scope of the law, Minnesota and Michigan, for instance, are not going to regulate development in their states out of fear of pollution in Mississippi and that, he said makes this an inherently Federal problem.

Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.