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Supreme Clean Water Day
NRO ^ | February 21, 2006, 8:17 a.m. | Jonathan H. Adler

Posted on 02/21/2006 7:30:15 AM PST by .cnI redruM

Today the Supreme Court hears two challenges to federal wetlands regulations. In each case, landowners are challenging the federal government’s authority to prevent them from developing wetlands under the Clean Water Act (CWA). Federal regulators claim such regulation is clearly authorized by the CWA and is necessary to safeguard the nation’s waters. The landowners, for their part, assert that the federal government lacks the legal authority to regulate private land that lacks a substantial connection to navigable waters. Depending on how the Court resolves these disputes, control over millions of acres of private land may hang in the balance.

Depends What the Meaning of "waters" Is

At issue in the two cases — Carabell v. U.S. Army Corps of Engineers and Rapanos v. United States — is whether wetlands are “navigable waters of the United States.” According to the text of the Act, landowners must obtain a permit before they can deposit “dredged or fill material” into the “navigable waters of the United States.” Obtaining permits is no easy task. According to one recent study, the process can take over two years and $250,000. Wetlands are covered by the regulations because the CWA defines “navigable waters” as “waters of the United States,” and, under federal regulations promulgated by the U.S. Army Corps of Engineers and the Environmental Protection Agency, “waters” are defined to include any wetlands that could affect interstate commerce including those wetlands adjacent to navigable waters and their tributaries.

The Carabells and John Rapanos each argue that these regulations exceed the scope of the CWA, and may even surpass the constitutional limits of the commerce clause. The Carabells own 16 acres of wooded wetlands in Macomb County, Michigan. The Army Corps says they cannot develop the land because it abuts a ditch that connects to a drain that empties into a creek which eventually connects to Lake St. Clair. The Carabells’ wetlands are hydrologically distinct from the ditch due to a man-made beam along the edge of the land, but the parcel is nonetheless “adjacent” to the ditch. According to the Army Corps, the close proximity of a ditch that eventually deeds into navigable waters is enough to give the federal government a veto over their development plans.

John Rapanos may be a less sympathetic litigant, but his land is no more a “navigable water” than is the Carabells’. Indeed, his wetlands are over ten miles from the nearest navigable waterway. Nonetheless, the federal government maintains his land is subject to federal regulations because water from the wetlands drain into a drain that drains into a creek that flows into a navigable river. This hydrological connection makes the drain a “tributary” of navigable water, the government claims, so it can prosecute Mr. Rapanos for altering his land without a federal permit.

The issues raised by Rapanos and the Carabells are hardly new. The precise scope of federal authority to regulate “navigable waters of the United States” has been contested since the CWA was enacted in 1970. Initially, the U.S. Army Corps of Engineers denied the law applied to wetlands, but environmentalists sued and the Army Corps changed its mind. Some years later, the Supreme Court upheld the regulation of wetlands adjacent to navigable waters, holding that the CWA covers those wetlands “inseparably bound up with the ‘waters’ of the United States.” The Court considered the scope of “navigable waters” again in 2001, this time finding the federal government had gone too far. In Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), the Court rejected the federal government’s claim that the presence of migratory birds allowed the Army Corps to regulate isolated ponds lacking any hydrological connection to navigable waters.

The Carabells and Rapanos argue that SWANCC is proof the federal government lacks the authority to regulate their lands. It is one thing to regulate wetlands directly adjacent to navigable waters, they claim, quite another to control every parcel abutting the tributaries of such waters, let alone those lands alongside ditches that drain into the tributaries. The federal government maintains that any hydrological connection is enough to sustain federal jurisdiction, and that without control over adjacent wetlands federal regulators cannot fulfill their mandate to protect the waters of the United States from pollution and other threats. However reasonable this argument may seem, it is a license for federal regulatory control over literally millions of acres of private land.

Dammed As the Day Goes On

If the wetland cases were not enough, there is a third Clean Water Act case on the docket today, concerning the regulation of dams. At issue is whether releasing water from the dam constitutes a “discharge.” If so, federally licensed dams must comply with state water quality rules before their licenses will issue. This case, S.D. Warren v. Maine, is important, but will not have nearly the significance of the holding in Rapanos and Carabell.

Today is not just Clean Water Day at the Court. It is also the first time Samuel Alito will hear oral arguments as an associate justice of the Supreme Court. Concern about how Justice Alito might rule in these cases was one of the factors that led environmental activist groups to oppose his confirmation to the Court. Groups such as Earthjustice and the Sierra Club feared that Justice Alito would be unsympathetic to far-reaching assertions of federal power. Environmental activists assume that limitations on federal power generally, and environmental regulations specifically, must come at the expense of environmental protection. But this is not necessarily so.

An amicus brief filed by the Environmental Law Institute (ELI) argues that the Court should uphold the federal regulation of the Carabells’ and Rapanos’ wetlands because states cannot be trusted to protect the environmental resources within their borders. According to ELI, without federal regulation states will engage in “destructive interstate competition,” and slash environmental safeguards in a short-sited effort to attract industrial development. Yet the history of wetland protection efforts suggests otherwise.

Federal regulation of wetlands did not begin until 1975. State wetland regulation had begun over a decade earlier, when Massachusetts adopted the first statewide wetland conservation measures. Other states quickly followed suit. Instead of a “race to the bottom,” the historical record suggests a “race to the top,” as the pattern of state regulation prior to 1975 was precisely the opposite of what “destructive interstate competition” should have produced. Many states were eager to protect their environmental resources, and they were not going to wait for the federal government to do it. There is further evidence that states learn from the environmental innovations of their neighbors. That is, when one state adopts environmental measures, neighboring states are often likely to follow suit.

Today states remain on the cutting edge of wetland protection, developing innovative conservation strategies. Were federal regulatory power curtailed, there is good reason to believe that many states would step forward to fill the void, much as some enacted explicit protections of isolated waters after the Court’s decision in SWANCC. Equally important, there is more than one way to save a bog. Various non-regulatory programs and private conservation efforts have proven enormously successful at restoring wetlands and related ecosystems and protecting them from destruction. In short, federal regulation is not all that stands between America’s wetlands and their destruction.

The future of America’s waters is at stake — or so some environmental activists contend. Also at stake is private control over millions of acres of private land. A ruling against federal power in the two wetlands cases going before the Court would undoubtedly curtail the scope of federal regulation. But it is premature to say such a ruling would pose a threat to environmental quality. Federal environmental regulation is not the only means of effective environmental conservation.


TOPICS: Business/Economy; Culture/Society; Editorial; Government; News/Current Events; Politics/Elections
KEYWORDS: alito; cleanwateract; cwa; ecoping; taking
This situation is just as reprehensible as Kilo Vs. Johnson. The Clean Water Act is being used to acquire power over other people's properties and has less and less to do with the actual safeguarding of water quality.
1 posted on 02/21/2006 7:30:17 AM PST by .cnI redruM
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To: .cnI redruM

ALL water eventually ends up in the ocean. That interpretation means that they control ALL water.

BTW, Phase 2 of the clean water act is being enacted right now. It means that we will be taxed to treat rainwater.


2 posted on 02/21/2006 7:35:15 AM PST by jim_trent
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To: .cnI redruM

I suspect the Supreme Court will be loathe to overturn a decades-old piece of legislation, despite its questionable constitutional footing. The Clean Water Act is just too much of a part of society.


3 posted on 02/21/2006 7:37:31 AM PST by Publius Valerius
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To: .cnI redruM

The CWA definetly needs reform or at least clarification. Private property rights should include protection against neighbors influencing your private property- polluting ones water or air. This needs to extend beyond navigable waterways...that marsh the protects the water supply is important to more than just the land on which it resides.


4 posted on 02/21/2006 7:38:06 AM PST by GreenFreeper (Not blind opposition to progress, but opposition to blind progress)
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To: Publius Valerius

Incidentally, the NYT has a bit more detailed article on these cases here:

http://www.nytimes.com/2006/02/20/politics/20water.html?_r=1&oref=slogin


5 posted on 02/21/2006 7:39:24 AM PST by Publius Valerius
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To: .cnI redruM
The Clean Water Act is being used to acquire power over other people's properties and has less and less to do with the actual safeguarding of water quality

In addition it is being used to set up appointed bureaucracies called regional water boards that expand the governments size exponentially and these unelected bureaucrats unconstitutional authorization to tax and fine land owners for noncompliance to their rules.
6 posted on 02/21/2006 7:41:24 AM PST by hedgetrimmer ("I'm a millionaire thanks to the WTO and "free trade" system--Hu Jintao top 10 worst dictators)
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To: blam; Carry_Okie; Chanticleer; ClearCase_guy; cogitator; CollegeRepublican; ...
ECO-PING

FReepmail me to be added or removed to the ECO-PING list!

Had some catching up to do with the ping list....

7 posted on 02/21/2006 7:42:08 AM PST by GreenFreeper (Not blind opposition to progress, but opposition to blind progress)
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To: GreenFreeper
Private property rights should include protection against neighbors influencing your private property- polluting ones water or air.

This protection existed before the creation of the clean water act.
8 posted on 02/21/2006 7:43:09 AM PST by hedgetrimmer ("I'm a millionaire thanks to the WTO and "free trade" system--Hu Jintao top 10 worst dictators)
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To: .cnI redruM

Would you mind keeping us posted on their findings?


9 posted on 02/21/2006 7:44:02 AM PST by hedgetrimmer ("I'm a millionaire thanks to the WTO and "free trade" system--Hu Jintao top 10 worst dictators)
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To: .cnI redruM
This has been decided once before. The definition of "navigable waterway" was set at a waterbody large enough to allow a vessel of 40 DWT. I don't know the case.
10 posted on 02/21/2006 7:44:40 AM PST by Carry_Okie (The environment is too complex and too important to manage by central planning.)
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To: GreenFreeper
That was the original purpose of the Civil Law Code. Should this hostile neighbor be appraised of the damage they are doing and do nothing to abate their behavior, possible criminal statutes for vandalism, or in a worse case, reckless endangerment, may very well apply.
11 posted on 02/21/2006 7:49:57 AM PST by .cnI redruM (Spreading liberal beliefs is as wrong as spreading AIDS.)
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To: .cnI redruM
More info and commentary:

http://www.washtimes.com/functions/print.php?StoryID=20060219-092133-3485

12 posted on 02/21/2006 7:53:51 AM PST by HoosierHawk
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To: hedgetrimmer; .cnI redruM
This protection existed before the creation of the clean water act.

I understand that but at the same time (not trying to side with lawyers) those codes/laws are even more vague than the CWA. We all know how difficult it can be to direct responsibility to an individual party. How many teams of lawyers would it take to 'prove' my neighbor contaminated my water supply? How many more would it take to prove removal of a wetland caused property damage to my property? It's a slippery slope no matter which way you look at it.

13 posted on 02/21/2006 7:59:21 AM PST by GreenFreeper (Not blind opposition to progress, but opposition to blind progress)
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To: GreenFreeper
>>>>It's a slippery slope no matter which way you look at it.


Yes, but once the power is given over to the Federal Gov, there is no stopping it, controlling it, or making them behave. The problem with the legislation supporting most environmental concerns, is this. It becomes a vehicle to control the lives of others, and therefore becomes a compliant and useful tool of people who's agenda has nothing to do with protecting nature.
14 posted on 02/21/2006 8:07:31 AM PST by .cnI redruM (Spreading liberal beliefs is as wrong as spreading AIDS.)
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To: .cnI redruM
The problem with the legislation supporting most environmental concerns, is this. It becomes a vehicle to control the lives of others, and therefore becomes a compliant and useful tool of people who's agenda has nothing to do with protecting nature.

I couldn't agree more. The question is how do we balance these competing interests. I'm not sure regulation at the state or local level makes anymore sense as watersheds know no boundaries.

15 posted on 02/21/2006 8:16:34 AM PST by GreenFreeper (Not blind opposition to progress, but opposition to blind progress)
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To: GreenFreeper
If watersheds know no boundaries, as you claim, than any legislation at all regulating their use, potentially devalues any piece of land I happen to own. Giving a government agency a blanket power like that is in no way in the interest of liberty. Unless a logical and sane border on what land is considered "wetlands" can be established, the government has no Constitutional right to regulate their use.
16 posted on 02/21/2006 8:19:54 AM PST by .cnI redruM (Spreading liberal beliefs is as wrong as spreading AIDS.)
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To: GreenFreeper
How many teams of lawyers would it take to 'prove' my neighbor contaminated my water supply?

None. Do you have a map of your property? Does it show water from your neighbor runs onto your land? Does a sample of the neighbors water show contamination before it enters your property? Doesn't take any lawyers to figure that one out.
17 posted on 02/21/2006 8:22:02 AM PST by hedgetrimmer ("I'm a millionaire thanks to the WTO and "free trade" system--Hu Jintao top 10 worst dictators)
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To: hedgetrimmer
Doesn't take any lawyers to figure that one out.

You'd think that but that is rarely the case. There is a landfill in the area near my work that illegally handled toxic waste. This contaminated ground/drinking water supplies with contaminants like arsenic, lead, mercury, etc. as well as several tributaries, and a great lake. It's been 5+ years of litigation and still the case has yet to be decided.

18 posted on 02/21/2006 8:37:52 AM PST by GreenFreeper (Not blind opposition to progress, but opposition to blind progress)
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To: .cnI redruM

All your water are belong to us!


19 posted on 02/21/2006 9:10:00 AM PST by muffaletaman
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To: muffaletaman

Remember, watersheds know no boundaries!


20 posted on 02/21/2006 9:12:41 AM PST by .cnI redruM (Spreading liberal beliefs is as wrong as spreading AIDS.)
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To: .cnI redruM
potentially devalues any piece of land I happen to own.

If 'watersheds' become the thing government protects instead of your property and your property rights, the environmentalists have effectively usurped our constitutional government and replaced it with a form of collectivism that knows no boundaries.
21 posted on 02/21/2006 9:18:06 AM PST by hedgetrimmer ("I'm a millionaire thanks to the WTO and "free trade" system--Hu Jintao top 10 worst dictators)
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To: hedgetrimmer; GreenFreeper

Here's a question/idea...

Given that pollution credit trading proved a flexible and ecologically successful way of limiting the use of acidic coal (i.e. it helped slow down acid rain a great deal), why wouldn't the same principal work in rivers...I'll get back to you in few minutes on how to mathematically assign the overall cap...


22 posted on 02/21/2006 11:37:48 AM PST by .cnI redruM (Spreading liberal beliefs is as wrong as spreading AIDS.)
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To: .cnI redruM
Given that pollution credit trading proved a flexible and ecologically successful way of limiting the use of acidic coal (i.e. it helped slow down acid rain a great deal), why wouldn't the same principal work in rivers.

I think that would be a good idea, just not sure how feasible it would be. I think air and water pollution, while similar, are very different. Air pollution is a more temporary problem- that is the atmosphere has a pretty incredible ability to self regulate. Water pollution, on the other hand, is reliant upon many systems working together and often takes much longer to self-correct and can be very persistent. Additionally, air pollution and water pollution are subject to very different scales of dilution. A mistake in terms of air pollution is buffered by the entire atmosphere while water pollution is largely contained by each particular watershed. Once a watershed becomes contaminated it becomes a big problem that is not easily fixed.

The gov't has tried to cap pollution with the use of TMDL's and its proven to be quite difficult to set those limits. What happens in wet and dry years, etc. I like the idea though I think the legalese could backfire.

23 posted on 02/21/2006 11:51:27 AM PST by GreenFreeper (Not blind opposition to progress, but opposition to blind progress)
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To: .cnI redruM
it helped slow down acid rain a great deal), why wouldn't the same principal work in rivers.

Another thing I forgot to mention is the difficult in distributing pollution credits. Since industry is often not evenly distributed how do you ensure that a particular river, stream, or lake is not exposed to more pollution than it can handle (assuming some agreement can be made)? This would seem to me to severely hamper the ability of a free market to limit pollution. Do you cap pollution per watershed?

24 posted on 02/21/2006 11:58:05 AM PST by GreenFreeper (Not blind opposition to progress, but opposition to blind progress)
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To: GreenFreeper
You would have to track the density of contamination in the watershed and track the removal rate. The prices of shares would adjust, and in dry years, where the watershed was, in a sense, less capable of defending itself, pollution rights holders would receive margin calls on those shares to account for the differential.

Adding the margin call risk does a great job of limiting the ability of a firm to hoard shares and either
a)corner the market
or
b) become a significantly higher order of magnitude polluter.

They would get financially killed every year there was a drought.
25 posted on 02/21/2006 11:58:54 AM PST by .cnI redruM (Spreading liberal beliefs is as wrong as spreading AIDS.)
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To: GreenFreeper
>>>>> Do you cap pollution per watershed?


The mathematics I played around with involved a theoretical differential equation that would equate the total watershed cap to the total watershed removal rate, based upon the maintenance of a steady state density in PPM below hazard threshold levels for the pollutants emitted.

So yes, you limit total shares based on what a watershed can self-abate over a given delta t.
26 posted on 02/21/2006 12:01:38 PM PST by .cnI redruM (Spreading liberal beliefs is as wrong as spreading AIDS.)
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To: GreenFreeper
"This needs to extend beyond navigable waterways...that marsh the protects the water supply is important to more than just the land on which it resides"

If you want to control someone Else's private property, you should buy it, then its your choice!
27 posted on 02/21/2006 12:09:50 PM PST by Beagle8U (An "Earth First" kinda guy ( when we finish logging here, we'll start on the other planets.)
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To: .cnI redruM
The mathematics I played around with involved a theoretical differential equation that would equate the total watershed cap to the total watershed removal rate, based upon the maintenance of a steady state density in PPM below hazard threshold levels for the pollutants emitted.

Wow, sounds like you really thought this out. Ok, this sounds pretty solid in theory but I have some concerns (pretty minor).

Watersheds can 'spill over' or 'divide' in wet and dry years. Multiple watersheds often combine during extremely wet years (though this is likely to help the causes) and in dry years, watershed can splinter. Say 2 watersheds get cut off due to lower waters, how does this impact removal rates? The differences in water volume could be huge. What about other factors that can influence removal rates. Temperature, water clarity (particulate matter), conc. of bio-organisms, water velocity, etc. These can fluctuate quite drastically from year to year, and can cause some pretty big changes in removal rates. Ideally, the limits would be buffered for such changes ut how do you accommodate changes of this magnitude?

28 posted on 02/21/2006 12:19:14 PM PST by GreenFreeper (Not blind opposition to progress, but opposition to blind progress)
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To: GreenFreeper
You reduce the amount of water regulated until the order of magnitude reduces to a level you can accommodate. That is, if a watershed can be composed of anywhere from 13 to 16 tributaries, you break your market basket down to the tributary level.
29 posted on 02/21/2006 12:28:01 PM PST by .cnI redruM (Spreading liberal beliefs is as wrong as spreading AIDS.)
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To: .cnI redruM
That is, if a watershed can be composed of anywhere from 13 to 16 tributaries, you break your market basket down to the tributary level.

I would suspect that no matter how you broke it down, removal rates could vary +10X very easily (if not more). It seems as though you need to create some kind of forecast model to predict removal rates from year to year. This could make atmospheric science seem pretty simplistic by comparison. Both have many many variables but at least with the atmosphere your going with a fairly stable volume/quantity.

30 posted on 02/21/2006 12:50:23 PM PST by GreenFreeper (Not blind opposition to progress, but opposition to blind progress)
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To: hedgetrimmer

"If 'watersheds' become the thing government protects instead of your property and your property rights, the environmentalists have effectively usurped our constitutional government and replaced it with a form of collectivism that knows no boundaries."

Well said.

The writer of this story completely missed the criminal activity perpetrated by the feds.

The EPA fascists have been trying to throw Rapanos in prison for years. Both the bureaucrats and the fed prosecutor engaged in perjury, trespassing, extortion and civil rights violations.

There needs to be a congressional investigation on this case. These bureaucrats and the prosecutor need time in federal prison for 10 to 20 years.


31 posted on 02/21/2006 2:32:10 PM PST by sergeantdave (And on the second day The Lord created February - the slowest month of the year.)
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