ENVIRONMENTAL LEGAL BLOGS

SHADES OF "X FILES"- CHILEAN LAKE DISAPPEARS VIRTUALLY OVERNIGHT

     From CNN: and AP:

A five-acre glacial lake in Chile's southern Andes has disappeared -- and scientists want to know why.

Park rangers at Bernardo O'Higgins National Park said they found a 100-feet-deep crater in late May where the lake had been in March. Several large pieces of ice that used to float atop the water also were spotted.

"The lake had simply disappeared," Juan Jose Romero, head of Chile's National Forest Service in the southernmost region of Magallanes, said Wednesday. "No one knows what happened."

(Rest of story at above link).

NEW GUIDANCE ISSUED BY FEDERAL EPA ON WETLANDS

     From today's SFGate.com comes this Associated Press report:

The Bush administration made it harder Tuesday for non-permanent streams and nearby wetlands to be protected under the federal Clean Water Act.

The new guidance issued by the Environmental Protection Agency and the Army Corps of Engineers requires that for such waters to be protected there must be a "significant nexus" shown between the intermittent stream or wetland and a traditional waterway.

And the guidance says a determination will be made on a case-by-case basis, analyzing flow and other issues. Environmentalist argued that would negate the broader regional importance of many such waterways in the aggregate on water bodies downstream.

CIVIL LIBERTIES FOR THE FASHIONABLE

    I came across this posting today at Nomination Watch, a website hosted by the National Women's Law Center whose web slogan is "Support judges who support women's rights."

     I'm not too sure what Clean Water Act issue have to do with the women's rights movement (last I recall, men liked clean water,too); nonetheless, this website somehow sees the two issues as linked:

Federal power to protect the environment, and other national concerns, at risk.  A case involving the scope of the Clean Water Act is another example of how extreme the four-vote block of conservatives can be.  In Rapanos v. United States, Justices Scalia, Thomas, Alito and Roberts went too far even for Justice Kennedy, when they took a shockingly narrow view of the application of the Clean Water Act to the nation’s wetlands and waterways.  Justice Kennedy broke ranks with them – although he did not join the more expansive reading of the law offered by Justice Stevens and the other three dissenters, either.

     Hmmm-poor Mr. Rapanos.  If he were a war protester, advocated socialized medicine, or routinely marched with Jesse Jackson, his civil liberties against federal power might have counted for something with the National Women's Law Center.  The problem is he's just, well, so unfashionable.

    I am, however, intersted to observe that the Law Center supports the expansion of federal power.  I am on the lookout for the Law Center's amicus brief in support of the government's appeal defending the NSA's wiretapping program.  If you come across that brief first, let me know.

CLEAN WATER AUTHORITY RESTORATION ACT HIGHLIGHTED ANEW IN LIGHT OF SUPREME COURT RAPANOS DECISION

     In a July 3, 2006 editorial, The New York Times highlights legislation currently pending in the US Senate and House that would effectively overturn the Supreme Court's decision in United States v. Rapanos (see Post of June 19, 2006) and make plain that federal jurisdiction extends to all surface waters, even minor ones.  The Senate version, known as the "Clean Water Authority Restoration Act of 2005", was introduced by Senator Russell Feingold (D-Wisconsin) and is SB 912.IS.  The bill provides, among other things, that "waters of the United States" shall no ponger mean just "navigable waters" but shall instead mean

all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing, to the fullest extent that these waters, or activities affecting these waters, are subject to the legislative power of Congress under the Constitution.'.

     The fuull text of the bill can be found by going to the Congressional legislative search engine and puting in the name or number of the bill.

     The companion House Bill is HR 1356.IH.

     By deleting reference to "navigable" waters, the legislation would side with the liberal wing of the Court in removing the central issue in Rapanos-i.e., did his relatively isolated wetlands nevertheless impact on such waters.

     The legislation is still in Committee in both the Senate and House. 

VICTORY FOR RAPANOS (BUT IT'S NOT OVER)

     Like so much of the legal community, this Blog has followed the history of the federal government's pursuit of John Rapanos, the surly Michigan landowner who has refused to recognize Clean Water Act jurisdiction over his private property.  See Posts of March 12, 22 and 25; October 15, 2005; and December 1, 2005.

     Today was D-Day (or Decision Day), as the United States Supreme Court published its opinion in Rapanos v. United States.  In a narrow victory (both in the vote and in the basis for the ruling), the Supreme Court reversed the lower courts' finding that Mr. Rapanos was liable and sent the case back to those courts for further proceedings.

     The decision was made along predictable ideological fault lines, with Chief Justice Roberts and Justices Scalia, Thomas and Alito attaching limitations to federal jurisdiction and Justices Souter, Ginsberg, Stevens and Breyer in this instance favoring federal authority over property rights.  Predictably, Justice Kennedy came down in the middle, agreeing that the government's case was flawed but refusing to engage in the same analysis of the limits of federal authority than was done by either the group of four Justices to his right or the group of 4 Justices to his left.

     In overturning Rapanos' liability, Justice Scalia (writing for himself and for Roberts, Thomas and Alito) observed:

     The enforcement proceedings against Mr. Rapanos are a small part of the immense expansion of federal regulation of land use that has occurred under the Clean Water Act--without any change in the governing statute--during the past five Presidential administrations. In the last three decades, the Corps and the Environmental Protection Agency (EPA) have interpreted their jurisdiction over "the waters of the United States" to cover 270-to-300 million acres of swampy lands in the United States--including half of Alaska and an area the size of California in the lower 48 States. And that was just the beginning. The Corps has also asserted jurisdiction over virtually any parcel of land containing a channel or conduit--whether man-made or natural, broad or narrow, permanent or ephemeral--through which rainwater or drainage may occasionally or intermittently flow. On this view, the federally regulated "waters of the United States" include storm drains, roadside ditches, ripples of sand in the desert that may contain water once a year, and lands that are covered by floodwaters once every 100 years. Because they include the land containing storm sewers and desert washes, the statutory "waters of the United States" engulf entire cities and immense arid wastelands. In fact, the entire land area of the United States lies in some drainage basin, and an endless network of visible channels furrows the entire surface, containing water ephemerally wherever the rain falls. Any plot of land containing such a channel may potentially be regulated as a "water of the United States."

     Justice Kennedy characterized the Scalia plurality as too narrow in its placing of waters beyond Clean Water Act jurisdiction if the waters either were not routinely flowing or standing or if the waters were not directly connected to such flowing/standing waters.  He criticized the dissent, however, for too little recognition that the word "navigable" is not infinitely elastic so as to fit every crevice of water, however isolated (" the dissent would permit federal regulation whenever wetlands lie alongside a ditch or drain, however remote and insubstantial, that eventually may flow into traditional navigable waters"). He adopted his own test (whether the wetlands at issue have a "significant nexus" with navigable waters) and reversed the lower courts' decision simply because the courts did not consider this question.

     Therefore, Mr. Rapanos faces continuing litigation back in the lower courts on the significant nexus issue.  If such a nexus is established, then Mr. Rapanos' 5-4 victory could turn around to become a 5-4 defeat the next time the case reaches the high court.  Nonetheless, for those of us accustomed over the last 40-50 years to seeing the Supreme Court rarely put brakes of any kind on the federal government's appetite for expansion, today was indeed one for the books.

"Work Continues to Restore Iraqi Marshlands"

   This Blog reported on August 24, 2005 (see "Categories-Wetlands" on right-hand side of this page) that true environmentalists should be thrilled Saddam Hussein was gone.  During his reign, he destroyed most of the Biblical marshlands as retaliation for a local uprising against him after the Gulf War.  The new Iraqi government, with the help of the United States, has been working to restore this ancient preserve.

   As the Department of Defense recounts:

BASRA, Iraq, June 7, 2006 — The Iraqi Ministry of Water Resources inherited what it calls one of the world's greatest environmental catastrophes from the former regime - the parched Mesopotamian marshes in southern Iraq.

Marsh Arabs have been living among the southern wetlands for thousands of years, making their homes from abundant reeds and mud. They sell the reeds, catch fish from long wooden boats and herd water-buffalo to sustain themselves.

Fed by the Tigres and Euphrates rivers, the giant wetlands once stretched for more than 6,200 square-miles.

When Saddam Hussein seized power in the early 1970s, he began ordering small sections of the wetland drained to make room for military factories, chemical plants and other industry.

The ancient marshes fell victim to the regime once again during the Iran-Iraq war, beginning in 1980, and were drained even further because of the land's perceived tactical value.

The biggest impact on the marshes came at the conclusion of the Gulf War in 1991. Hussein gave the order to drain the marshes completely in retribution for the Shia uprising against the regime. The huge cost of draining the marshes put a burden on Iraq's economy, and the environmental impact on the marshes' eco-system was disastrous. Certain types of birds, fish and plants normally found in the marshes rapidly disappeared.

   After falling to only 10% of their former size under Saddam, the DOD reports that today the marshes are back up to 40% of that size.  Full restoration will be a long process; but at least, and at last, things are on the right path.

"103 Acres Added to Bolsa Chica Reserve"

     The above headline is from The Los Angeles Times , which reported on December 22 (last Thursday) that

The last major acquisition for the Bolsa Chica wetlands in Huntington Beach was made Wednesday when the state bought 103 acres that activists had sought for more than a decade to preserve.

California Coastal Communities Inc., a Southern California homebuilder, sold the parcel near Warner Avenue and Pacific Coast Highway to the state Wildlife Conservation Board for $65 million.

     For the full article, click the link above (free subscription may be required).

MISSISSIPPI FEDERAL JUDGE IMPOSES PRISON TERMS FOR CLEAN WATER ACT VIOLATIONS

  Per The Clarion-Ledger, a federal Judge in Mississippi imposed multi-year sentences on a real estate developer, his daughter (a real estate agent) and an engineer after the three were convicted by a jury for, among other things, violating the Clean Water Act.  Per the newspaper:

The defendants sold lots to 67 families in [a]... mobile home park, all or part of which turned out to be federally protected wetlands, and installed cheap septic systems that likely would fail and contaminate the drinking water.

Authorities received complaints from residents about sewage, stomach illnesses and well water with a bad odor, color and taste.

     The Judge also imposed $1.4 million in fines on the three defendants.  Ouch.

     This case stands in sharp contrast to the Rapanos case (see "WETLANDS" under "CATEGORIES" on the right-hand side of this page), wherein a Michigan federal Judge was of the view that the government was overreaching in its Clean Water Act prosecution of Mr. Rapanos for filling in alleged wetlands on his own property (the wetlands were remote from any navigable waters). The Judge refused to send Mr. Rapanos to jail. Of course, in Mr. Rapanos' case, he was not deceptively selling wetlands to third parties.

     As reported in previous Posts/this Blog, the Rapanos case is presently before the US Supreme Court.  The Supreme Court's ruling in the case will provide key guidance in the interpretation of the CWA.

"Alaska, Utah join lawsuit challenging federal wetlands rules"

     So reports the Associated Press (as headlined on BigNewsNetwork.com), thus giving Mr. Rapanos and a companion litigant a boost in their high-profile resistance to federal attempts to assert Clean Water Act jurisdiction over lands only remotely conencted to the navigable waters of the United States.  For history and discussion, see 'WETLANDS" under 'CATEGORIES" on the right-hand side of this page.

UPDATE: RAPANOS APPEAL TO BE HEARD BY SUPREME COURT ON FEBRUARY 21,2006

  This Blog has followed the Rapanos case (prosecution of Mr. Rapanos for destroying "wetlands" geographically somewhat far removed from any body of navigable water).  See "Wetlands" under "CATEGORIES" on right-hand side of this page.

     The US Supreme Court has now scheduled oral argument for February 21, 2006 in the case (and in another case, Carabell v. Corps of Engineers, raising similar issues to Rapanos--i.e., how far does Clean water Act jurisdiction extend under the Interstate Commerce Clause?).