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THE FALLOUT
BEGINS WITH A COURT CASE IN TEXAS
We
are in the midst of the fallout from the United States Supreme
Court’s fractured decision on the reach of the federal Clean Water
Act which merely served to further confuse federal protection of
wetlands throughout the country.
The
Supreme Court case, combining two cases, United States v. Rapanos and Carabell v. United
States, resulted in a split decision sending the cases back to
the lower court, the United States Court of Appeals for the Sixth
Circuit, for further consideration.
With four justices wanting to maintain protection of these
wetlands, four justices favoring reduction in protection unless they
were directly connected to continuously flowing waters like rivers or
lakes, and Justice Kennedy not agreeing with either side, the result
was uncertainty.
Despite
the confusing ruling, a federal judge in Texas cited the High Court
decision in a ruling preventing the government from penalizing
Chevron for an oil spill in a dry creek bed. In 2000, a Chevron
pipeline burst spilling more than 126,000 gallons of crude oil into a
tributary of Ennis Creek.
Chevron argued the tributary and creek were dry when the spill
occurred and, therefore, would not fall under jurisdiction of the
Clean Water Act. However, the EPA claim pooled water was present at
the time of the spill. The first
case to cite the Supreme Court’s muddy ruling, the Texas
judge ruled the government could not impose penalties because the
tributary did not qualify as “waters of the United States.” In his opinion, the judge relied
heavily upon Justice Scalia’s opinion in the Rapanos case that the
“waters of the United
States” only apply to relatively
permanent and continuously flowing bodies of water, such as oceans,
rivers, and lakes.
An
inconsistent ruling if you look at the original intent of the Clean
Water Act - that is to protect all of our wetlands, streams, lakes,
rivers, and other important waterways - this case is further
justification for the need for Congress to reaffirm the intent of the
Clean Water Act clarifying what waters are federally regulated.
SENATE
HEARING ON FEDERAL WETLANDS REGULATION
 On August 1, the Senate Environment and Public Works Subcommittee
on Fisheries, Wildlife, and Water held a hearing “Interpreting the
Effect of the U.S. Supreme Court’s Recent Decision in the Joint Cases
of Rapanos v. United States
and Carabell v. U.S. Army Corps of Engineers on ‘The Waters of the United States.’” The hearing was to determine
whether Congress needs to clarify the Supreme Court positions
regarding federal jurisdiction of wetlands. For some of the members of
Congress, the decision on how to use wetlands most appropriately
belongs at the state and local levels of government where land use
and community planning decisions belong. Rather than Congress stepping in,
they believe the EPA and Corps should issue a new definition of
“waters of the United
States” consistent with the
Supreme Court decision. For
others, Congress needs to act to clarify and restore the strongest
possible federal protections for our nation’s waters under the Clean
Water Act.
As
with the Supreme Court decision, there was no consensus at the
hearing. In response to the
decision and hearing, the EPA and Corp will work “to develop interim guidance regarding the tests
defined by the Supreme Court in the Rapanos/Carabell decision, in
order to provide clarity for the public and to ensure consistency
among CWA jurisdictional determinations nationwide”.
To
view hearing testimony, visit: http://epw.senate.gov/hearing_statements.cfm?id=259992
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