Arguments in Clean Water Act Cases

The New York Times and Washington Post both have articles (here and here) on yesterday's arguments in Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers, two consolidated cases that go to the scope of federal authority to regulate wetlands under the Clean Water Act.  From the WaPo article:

All water flows downhill to the sea. But at what point does it enter the federal government's jurisdiction?

That was the question at the Supreme Court yesterday, as the justices heard arguments in the first major environmental case of the Roberts Court era -- a test of the Clean Water Act that could determine the scope of federal authority over the development of wetlands nationwide.

As enacted in 1972, the landmark environmental legislation gave federal regulators the power to control the discharge of pollutants into "navigable waters." On the theory that what gets dumped upstream eventually winds up downstream, the government has interpreted that phrase to include not only large lakes and rivers, but also their smaller tributaries and wetlands near those tributaries.

The Bush administration, backed by environmental organizations and more than 30 state governments, says that any narrower interpretation would cripple the Clean Water Act. States alone could not do the job, the administration argues.

"It's a bit much to ask legislators in Minnesota and Wisconsin to restrict local development to protect water in Mississippi," Solicitor General Paul D. Clement told the court yesterday.

But property owners, backed by homebuilders, developers, farmers, ranchers and some water districts from the arid West, say that view would federalize every drop of water in the country, effectively putting Washington in control of development miles away from any recognizably navigable waters.

Ben Barros

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