- The Washington Times - Saturday, February 18, 2006

Tuesday the Supreme Court will hear arguments in two important cases that may affect the balance of federal and state power to regulate water — the first environmental cases heard by the court since Chief Justice John Roberts and Justice Samuel Alito took their seats.

Indeed, these will be the first cases heard by Justice Alito since assuming his new position. The decisions are likely to reveal how the court views the federal and state roles in regulating water and the environment — and how the two new justices view these roles.

The question before the court is whether the federal government has authority to regulate wetlands or this authority instead belongs to the states.

The federal government has traditionally regulated navigable waters, as part of its power to regulate the “highways” of interstate commerce. The states have traditionally regulated waters for all other purposes, including non-navigable waters. Since wetlands are typically non-navigable, they historically have been state-regulated.

Congress preserved this distinction when it passed the 1972 Clean Water Act, by allowing the Army Corps of Engineers to regulate “navigable waters.” But Congress muddied the waters, so to speak, by defining “navigable waters” as “waters of the United States,” an amorphous term that might, conceivably, include every body of water anywhere in the United States — every pond, bog, brook or stream. The Corps has argued in favor of the broadest definition, claiming authority to regulate all wetlands regardless of their navigability.

The Supreme Court has not fully clarified the scope of the Corps’ jurisdiction. The court held in 1985 that the Corps can regulate wetlands “adjacent” to navigable waters, but held in 2001 that the Corps cannot regulate “isolated” wetlands — those wholly unconnected to navigable waters. But Corps jurisdiction over wetlands between these extremes — neither adjacent nor isolated — is unclear.

The lower courts have disagreed on how far the Corps’ wetlands authority reaches. Some have interpreted the Corps’ jurisdiction broadly — holding it extends to all wetlands except rare isolated ones — and others have interpreted the Corps’ jurisdiction narrowly, holding it is limited to wetlands that directly abut navigable waters. The question whether the Corps’ authority is broad or limited is raised in these cases: Rapanos v. United States and Carabell v. United States.

In Rapanos, a Michigan developer sought to develop wetlands connected only remotely to navigable waters — the wetlands were about 20 miles from a navigable lake. In Carabell, another Michigan developer sought to develop wetlands not even connected to navigable waters; a berm separated the wetlands from an adjacent ditch, thus preventing any wetlands water from reaching a nearby navigable lake. Neither of the wetlands affected navigable waters or interstate commerce.

Nonetheless, the Corps claimed jurisdiction over both wetlands and refused to grant permits for their development. Lower courts upheld the Corps jurisdiction. The Supreme Court decided to review both cases, venturing once more — one hopes for the last time — into this jurisdictional thicket.

The jurisdictional issue facing the Supreme Court raises important issues of federalism that transcend issues of wetlands regulation and environmental law.

Under our constitutional system, the federal government regulates commerce among the states, including navigable waters that are the vital arteries of such commerce. The Supreme Court has expanded this federal power to include non-navigable waters that affect interstate commerce — like tributaries of navigable waterways — but has not expanded this federal power beyond those limits. Thus, states regulate non-navigable waters, including wetlands, that do not affect interstate commerce.

The historic dividing point between federal and state powers to regulate waters, then, depends on whether the waters affect commerce among the states — if the waters have this effect, they are subject to federal regulation; otherwise, not.

This federalism issue has another dimension that involves local governments’ authority to regulate land use. Under our federal system, local governments — not the national government — balance the need for development that provides housing and promotes growth against the competing need to preserve resources in their natural state, like wetlands.

The Corps’ position in the Rapanos and Carabell cases threatens this longstanding division of federal, state and local power. By assuming jurisdiction over wetlands that do not affect interstate commerce, the Corps attempts to expand federal power beyond previously-recognized boundaries and to limit the traditional authority of state and local governments to regulate water use and land use.

In the process, the Corps threatens the rights of those who rely on state and local authority for their water supplies. In California and throughout the West, with increasing demands on limited water resources, the authority to regulate water is vital in achieving economic growth and balancing growth and environmental needs. This has been a traditional state and local responsibility, not a federal one.

The new Roberts court should reaffirm the historic federal and state balance in regulating water and land use, by holding state and local governments — not the federal government — are responsible for regulating wetlands that do not affect the nation’s commerce interests.

Roderick E. Walston, is a natural resources and water lawyer at Best Best & Krieger in California. He is former general counsel for the Metropolitan Water District of Southern California and was deputy and acting solicitor for the U.S. Interior Department and chief assistant attorney general for California. He authored an amicus brief in the Rapanos and Carabell cases on behalf of Western public water agencies.


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