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Environmental brief ~ Supreme Court hears wetlands, dam cases

[JURIST] In Tuesday's environmental news, the US Supreme Court [official website] heard oral arguments in three cases that challenge the limits of the Clean Water Act (CWA) [text]. The court heard consolidated arguments in Rapanos v. United States and Carabell v. US Army Corps of Engineers [Duke Law backgrounder; merit briefs], challenges to the federal government's legal authority to regulate private land that does not have a substantial connection to navigable waters. Petitioners argued that regulations promulgated by the US Army Corps of Engineers and the Environmental Protection Agency exceed the scope of the CWA. Under the CWA, landowners must obtain a permit before depositing "dredged or fill material" into the "navigable waters of the United States." The CWA defines "navigable waters" as "waters of the United States," and the agencies have defined "waters" to include wetlands adjacent to navigable waters or tributaries. The Carabells and Rapanos argue that their properties may contain wetlands, but they are not adjacent to navigable waters and should be beyond the scope of the CWA. Indeed, the Rapanos property is some 10 miles from the nearest navigable water. Justice David Souter expressed concern that limiting the scope of the CWA could allow polluters an "end-run around the regulation," but Chief Justice John Roberts and Justice Antonin Scalia seemed skeptical of allowing the EPA to rely on an overbroad interpretation of "waters" and "tributaries." AP has more.

The Court also heard arguments in S.D. Warren v. Maine [Duke Law backgrounder; merit briefs, a case which involves the regulation of dams. The question in this case is whether water released from a dam should be considered a discharge. If it is, then federally licensed dams would have to comply with state water quality rules in order to receive their license. The plaintiff argues that it is not discharging anything into the water, and that the release of water from the dam should not constitute a discharge under the CWA.

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