March 7, 2006
A Watershed Moment
U.S. Supreme Court evaluates definition of 'navigable waters,' which could dilute Clean Water Act's clout
by Jennifer Finley | BC WATER NEWSThe Clean Water Act has been in place for more than 30 years, but two cases now before the U.S. Supreme Court could lead to a nationwide water-quality showdown concerning the federal government's authority to apply the law to all waterways and watersheds.
California's Central Valley Basin includes two major watersheds—the Sacramento River in the north (above) and the San Joaquin River in the south.
(Photo courtesy Sacramento River Recreation and Access Guide)The 1972 act states that the government has the right to protect "navigable waters," but justices must wrestle with how to define that term and whether the law includes smaller creeks that reach remote, navigable waterways. The U.S. government contends that the act extends to wetlands, small rivers and even dry creek beds.
The court also must consider if clean-water laws can be enforced in spots where there is not much water to protect. At present, the act protects areas that are seasonally dry, but prone to runoff. Many states, such as Arizona and New Mexico, have rivers that are dry for most of the year.
Toxins dumped into a dry bed can be washed downstream in a rainstorm and enter a major waterway that sits miles from the actual source. Without Clean Water Act protection, there is no way to prevent contaminants from reaching larger bodies of water and polluting drinking water resources. Today, the act can be enforced to block development on private wetlands if there is any danger of toxins invading faraway rivers or reservoirs.
The question before the justices is whether federal regulators are overstepping their constitutional authority.
The interpretation
Water suppliers, farmers and developers fear that authority may be extended to cover every water resource in the country that has any connection with remote, navigable waters, including brooks, ponds, dry washes, riparian areas, low lying fields and stock tanks.
Dr. Alex Farassati
environmental services manager Calabasas, Calif.
Under the law, landowners and developers are required to seek permits and to submit plans to protect water from contamination. Completing this process is often expensive and time-consuming and can stifle development.
On the other hand, environmentalists warn that restricting the law could be catastrophic for water quality nationwide and could deprive 90 percent of U.S. waterways of federal protection. The government would be rendered powerless to prevent sewage and toxins from seeping into waterways and no legal recourse would be available to punish polluters.
"The act should include wetlands and streams, whether they are 'directly' connected to navigable waterways or not. I can understand the concerns of the property-rights advocates who fear every rivulet will now be subject to regulation, but I do not see that happening," says Michael Campana, professor and director of the Water Resources Program at the University of New Mexico. "As for leaving regulation up to the states: One problem may be the transboundary nature of certain water bodies, such that the lack of regulation in one state may impact water quality in another state."
The lawsuits
The two cases, Rapanos v. U.S. and Carabell v. U.S. Army Corps of Engineers, challenge the federal government's right to prevent landowners from developing wetlands that may connect to a distant waterway. Both cases involve developers from Michigan who would like to see the scope of the law narrowed.
The outcome of these cases will have drastic impacts on the nation's waterways and will affect about 100 million acres of wetlands. Rapanos was fined $13 million for filling more than 50 acres of wetlands without a permit in the 1980s. He had planned to sell his property to be developed into a shopping mall. The USACE ruled that his wetlands connected to waterways that eventually flow into Saginaw Bay, about 20 miles away. If the Supreme Court rules against him, Rapanos could face a prison sentence.
June and Keith Carabell were prevented from filling 15 acres of wetlands to build 112 condominiums. The USACE rejected their proposal because the wetlands sit next to a drainage ditch, which leads to a creek that empties into a lake about a mile away.
The runoff
How can officials prevent pollution from seeping into our waterways without stepping on the rights of private citizens? New ideas are popping up across the country.
"One of our problems in Calabasas is to limit urban runoff by regulating developments and increasing permeable surfaces within each development," explains Dr. Alex Farassati, Environmental Services manager for the City of Calabasas, Calif. "We have recently completed a bio-infiltration project at the taxpayers' expense for $400,000 to divert urban runoff into an infiltration site. Even though the site is about 10 miles upstream from north Santa Monica beaches, we are sure that this will positively impact the water quality of our beaches with 20 million visitors a year.
"We are looking for opportunities to create more wetlands because development cannot be avoided and more and more wetlands are being destroyed. One way to reduce bacteria and nutrients from reaching large waterways is to divert polluted waters into wetlands and let nature refine the polluted water. We need tougher regulations, either on the federal or state level, to protect existing wetlands and to create new ones."
A normally dry creek bed overflows during a rainstorm,
flushing sediment into a nearby stream.
(Photo courtesy of Bureau of Reclamation.)The justices will continue to meet behind closed doors, but a decision is not expected for several months.
The ruling will make U.S. water history, drastically impacting waterways and affecting about 100 million acres of wetlands. Environmentalists and water suppliers warn that a narrow interpretation of the law will severely impair one of the most effective anti-pollution laws in the country's history.
OTHER VIEWS:
Supreme Court takes a long, tall drink
Protect upstream waters
Restore, strengthen Clean Water Act
RFK Jr.: Destroying the Clean Water Act
Challenge endangers nation's streams
READER'S VIEWS:
"I believe the original intent of the CWA was to improve and protect the water quality of all of the nation’s freshwater streams and rivers, not just the largest ones. To do this, wetlands and smaller streams may also need to be included; otherwise the main goal cannot be achieved. If anything, the CWA should be strengthened. If weakened, a few of our operations might be easier and cheaper, but the savings could be more than offset by higher treatment costs, jeopardized water quality and lower consumer confidence."
— Fred Barker, waterworks engineer,
manager of transmission operations, Los Angeles DWP
Mr. Barker's comment is completely logical. However, carried to the extreme, which is the case with many of the regulations and lawsuits, the interpretation could be that every speck of land is subject to CWA because the entire earth's surface drains to some major body of water in a deluge.
The cases before the Supreme Court are not particularly about protecting clean water, they are actually all about indiscriminately condemning private property without compensation -- an illegal act. I believe that what the court is being asked to do is to cause USACE and others to apply CWA where it correctly applies, not as a means of national zoning.
— John Borchard, farmer in Somis, Calif.
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