Ruling befouls clean water efforts.

Byline: Charlie Tebbutt For The Register-Guard

On June 19, the U.S. Supreme Court issued a decision involving the definition of `waters of the United States' under the Clean Water Act that shows the clear lines between the factions of the new court. The decision endangers long-standing protection of our nation's waterways, and marks the emergence of an activist bloc of justices on the court.

The cases decided - Rapanos vs. United States and Carabell vs. U.S. Army Corps of Engineers - involved the filling of scores of acres of wetlands for a shopping mall and an apartment complex. The wetlands were adjacent to tributary streams of downstream navigable rivers.

In the Rapanos case, the developer of the proposed shopping mall in Michigan was told numerous times by state and federal officials to cease filling wetlands and obtain a permit. He ignored them and eventually was convicted of criminal and civil violations of the Clean Water Act.

In the Carabell case, the permit application to fill wetlands was denied. The U.S. Army Corps of Engineers nationwide refuses to grant wetlands fill permits less than 0.15 percent of the time.

In both cases, the court focused on the central question of whether the wetlands adjacent to or connected to tributary streams were covered by the jurisdiction of the federal Clean Water Act.

Profit-minded industry groups and two states, Alaska and Utah, filed amicus (friend of the court) briefs seeking to turn back decades of Clean Water Act protections. On the other side was an unprecedented alliance of protection-minded entities, including members of Congress who passed the Clean Water Act in 1972, a bipartisan coalition of former Environmental Protection Agency administrators, 33 states, some of the world's foremost ecologists and groups representing every Western state.

In a rare 4-1-4 decision, with no majority opinion, the court put the protection of our streams and wetlands at grave risk. The nation can now clearly see that the activist, reconstructionist bloc of Justices Antonin Scalia and Clarence Thomas has been joined by Justices John Roberts and Samuel Alito, who revealed their true colors in the case.

The bad news is that four members of the court ignored the clear language of the Clean Water Act and decades of precedent concerning the right of Congress to protect the health of our nation's environment. The case revealed that the newest two members of the court, Roberts and Alito, made statements to Congress during their confirmation hearings about judicial restraint and respect for precedent that were nothing but a false front.

The good news is that four members of the court recognized the right of Congress, and the agencies it deputized, to protect our nation's streams and wetlands from pollution and destruction.

What muddies the waters is the lone decision from Justice Anthony Kennedy suggesting a new test, unsupported by either faction, requiring that all streams and wetlands have a `significant nexus' to waters that can be navigated by vessels in commerce.

This position ignores the conclusions reached by EPA and the Corps of Engineers nearly three decades ago, upheld by the court in its 1985 Riverside Bayview decision, that classes of wetlands and streams are deserving of protections because of their known interconnectedness to the act's objective `to restore and maintain the chemical, physical and biological integrity of the nation's waters.'

The Clean Water Act was in 1972, and still is, the most comprehensive environmental protection statute ever written in this country. Without protecting our nation's headwaters, which include wetlands that feed them, we cannot accomplish, even belatedly, Congress' goal that pollution of our nation's waters be `eliminated by 1985.' The scientists who submitted amicus briefs described for the court how wetlands are integral to protecting the physical, chemical and biological integrity of downstream waters.

The upshot of the court's opinion is that without Congress stepping in to reaffirm what it said in 1972, in even more explicit terms, local, state and federal agencies may be left to figure out on a stream-by-stream and wetland-by-wetland basis which waters are worthy of protection and which are not. This opinion leaves lots of room for mischief at the local and regional levels, potentially taking away the minimum protections intended by the Clean Water Act to make all of our nation's waters fishable and swimmable again.

Fortunately, on Aug. 10 the 9th Circuit Court of Appeals, in the first appellate court decision interpreting the Rapanos decision, affirmed a lower court ruling finding the Clean Water Act still applies. In that case, Northern California River Watch vs. City of Healdsburg, an abandoned gravel pit that had become a lake with extensive wetlands had been used by a municipality for the discharge of partially treated sewage.

The appeals court found that the lake was covered by the permitting requirements of the Clean Water Act, since the water in the lake affected the quality of the adjacent Russian River. As a practical matter, all wetlands and headwaters streams are integral to the water quality, and quantity, of downstream waters.

For the West, the implications are even farther reaching than for other areas of the country. The Kennedy opinion suggests that the future of wetlands and small, intermittent streams be determined case by case by state or federal permitting agencies. This opinion invites interference by local politics.

In areas of the West, up to 96 percent of the streams are seasonal. The Scalia bloc would have federal protection for these waterways disappear. These waterways encompass more than 2 million stream miles in the West. Millions of acres of wetlands that are interdependent with these streams are also at risk of complete loss.

The net effect is that seasonal streams and wetlands could disappear, further stressing perennial rivers with more pollution by removing the capillary water systems that feed them. With the loss of these capillaries, the main arteries also would clog, weaken and even dry up. Once they become seasonal, they too could lose pro- tection.

Ignoring the simple concept that we all live downstream, one faction of this court has shown a very scary side: that it is willing to ignore the intent of Congress and decades of judicial precedent directly on point.

Chief Justice Roberts and Justice Alito promised to follow the rule of law during their recent confirmation hearings. Instead, they followed Justice Scalia's strained opinion, which was based upon the contorted interpretation of the definition of `waters' from a 1954 edition of Webster's Dictionary.

This decision shows, as pointed out by the dissent, that when it comes to the ideological predilections of the hostilely anti-environmental bloc of the new court, the rule of law be damned. Even the conservative Justice Kennedy called the Scalia bloc's opinion an `unprecedented reading of the act.'

The Court has trampled on the prerogatives of the legislative branch, openly supported by 33 states (including Oregon) and opposed by only two, to set minimum federal protections for all of our nation's waters.

As part of the Constitution's separation of powers provisions, it is the job of Congress to establish our nation's laws. It is indeed hypocritical for the four-justice plurality to preach strict construction of the Constitution's provisions and then so blatantly ignore their own principles.

In 2003, following a 2001 Supreme Court decision on wetlands protection, the Bush administration proposed a major rollback of federal regulations. It sought to remove protections for fragile streams and wetlands, including those that provide the lifeblood to the arid West and the people and wildlife that depend on them. This Supreme Court opinion, even though no majority was reached, leaves the door wide open for this administration to put that proposed rule into place.

The 2003 rule was withdrawn when a bipartisan group of more than 200 Senate and House members, along with a huge cross section of the American public, wrote to the president urging him to withdraw the proposal after it had been exposed by the press.

Congress now needs to step back in and make even clearer what it first intended. The Clean Water Act Authority Restoration Act (House Resolution 1356 and Senate Resolution 912) does just that. Congress needs to make an emphatic statement that it is its job to protect our nation's waters, and not the court's or the executive's job to undo one of the most important laws ever passed in the country.

Charlie Tebbutt is an attorney in the Eugene office of the Western Environmental Law Center. He has been enforcing the Clean Water Act on behalf of people across the country for nearly two decades, and he wrote the amicus brief on behalf of Western groups in the Rapanos case.