AUDIENCE QUESTIONS

responsibilities there, and you should have savings there

that help pay for—

RER MARY MUSHINSKY: [interposing] No, you’re miss

ing point. There has to be basin planning. We have to

know how much water is in the bank before we can allo

cate it. All that has to be done and it has to be paid for.

WILLIAM BRIGHT: But a lot of that information is

already there. You have each of the water companies

and each of the 300 or so that have it, have that infor

mation. It’s a matter of pulling that all together, I think.

RER MARY MUSHINSKY: No. The water company

boundaries do not necessarily match the resource

boundaries. For example, on paper, a utility comes in

and they say, we have enough water for twenty years to

serve this many people. And they can show that. But

that doesn’t saythat we have Everyone who s usingenough water toserve these people, plus sufficient water for the fish in

this river. The calculations haven’t been done on the

basis of geography, they’ve been done on the basis of

water utility boundaries, and that’s not going to work

for what this conference is for, which is to allocate the

resource for multiple competing purposes.

DAVID SILVERSTONE: But whatever the answer to that

question is, it strikes me that it sort of doesn’t matter.

Fven if we were starting from ground zero and we had

no money currently being spent, we’re still talking rela

tively small amounts of money given the value of the

resource that we’re trying to allocate. That’s the critical

thing. And the fairness question is very important, and

the universality; everyone who’s using water ought to

help pay. I think those are some of the principles and, if

we did it appropriately, the impact on any single person

would be relatively small.

GREG SHARP: Marshall, did you have anything else to

add?

MARSHALL CHIARALUCE: Why don’t you take another

question?

GREG SHARP: Okay. Sure. [laughter]

MARSHALL CHIARALUCE: I’m not trying to avoid my

responsibility for a contribution here. [laughter]

JASON VOKOUN: Hi, my name isjason Vokoun and I

work for the University of Connecticut. My question fol

lows up on what Mary was saying The State of

Nebraska has natural-resource districts that are drawn to

sub-watershed boundaries, and they are a local form of

government that has sort of superseded the county in

matters relating to water. You still vote by county, but

the natural-resource districts have some small taxable

authority and they are able to levy taxes on people

within their boundaries. It’s a variable tax, and they are

able to do that, to generate the money that they needto do basin

water ought to help pay. planning, andinstream-fiow

studies, and things like that. And this is all within the

first-in-time, first-in-right water law that exists there. The

water czar is there, but there are these mechanisms at a

more local level of government where people are meet

ing their needs on a case-by-case basis and have the

legal authority to do some taxing to raise the funds to

do that. So it’s very different. And that’s just one exam

ple of a way that a state with really no tax base to speak

of is able to generate little bits of money here and there.

If you are familiar; can you comment? Thank you.

KARIN SHELDON: We haven’t talked at all about the

Clean Water Act’s overlay on water planning and man

agement. My focus was on water allocation and not at all

on water quality because the two systems in the West

are still divergent. The Clean Water Act does require a

lot of basin planning, and in recent years there’s been a

real interest in watershed planning and management.

You’re seeing that not only in the East but across the

West, and these are very, very successful efforts bringing

together land-use planning and water planning.

Nebraska is a good example of that. A number of other

states are, on a watershed basis, doing great things to

33

AUDIENCE QUESTIONS

address the very issues that this conference is addressing. via planning, via controls, and conservation, focusedin some measure on how you pay for it and the availablemechanisms for that, various kinds of permits and taxes,and so on.

But, you know, it’s interesting. ft’s pay you now or payyou later. This goes back to Mary’s question. If you don’thave the data that you need, you may not have any kindof rational system at all. By the time you get around tocollecting data, if you don’t do it now, your systems mayhave collapsed ecologically, which wouldn’t be meetinganyone’s needs or expectations.

GREG SHARP: All right. I think we’re going to have towrap up to get you all to lunch so we can have our lunchspeaker. I was going to do a summary, but I think thepanel’s done a great job summarizing, and I have provided some takeaway points in your materials.

DEP’s Allocation and Diversion ReportFinally, as a post-script to some of the comments today, Ithink anybody who is interested in this issue should readthe DEP’S 2000 report on water allocation.3’ Many of theissues that we’re talking about today are not only highlighted but documented and detailed in this document:over-appropriation, over-utilization, and other difficulties. The report is incredibly candid. For a state agencyreport, it is extremely candid in saying we don’t haveenough people. You’ve heard today how it takes foreverto get a diversion permit. I apply for them on behalf ofclients, and can say that’s true. Why? Aside from theeleven factors that Kurt mentioned that the departmenthas to consider, there are only two people writing permits. The permit backlog has gone down from 160 toeighty, but there are still eighty diversion permits pending in the department, and that doesn’t take intoaccount the new ones that are coming in each month. Soif the answer to the question is not money, you’re askingthe wrong question. [laughter][applause]

“Connecticut Deportment oi Environmental Protection, Report to thePublic At 98-224 (2000).

MARTHA SMITH: We’re going to take a break now forlunch.

THE CLEAN WATER ACT AND THE SUPREMECo U RT

Introduction by Curt JohnsonCURT JOHNSON: The way I know Pat, is that lam analum of Vermont Law School, and I got a masters there.Pat, for many years, ran the Environmental Law Centerup at Vermont Law School. He’s also an absolute topnotch litigator, an expert on clean water law all aroundthe country.

PATRICK PARENTEAU: Hopefully.

CURT JOHNSON: Globally. Globally. (laughter]

Absolutely. [laughter] And I want to say that the reasonthat I ended up at Vermont Law School, to be honestwith you, was, I came up on a boiling hot summer day,the first day I got there. The White River was there. Ijumped in the river, looked up in the air, and I said,“This is the place for me But thank you very much toPat for being here today. We are in for a real treatbecause he’s going to discuss many, many importantcases that are now before the United States SupremeCourt that he is actively participating in.

Patrick ParenteauPATRICK PARENTEAU: This is a great conference. Myonly criticism is that we should have had it in August.Because, you see, I’ve had to stand in for my goodfriend and colleague, Karin Sheldon, teaching her waterlaw course this semester. And if I’d have had ProfessorStrasser’s materials in August, it would have saved me awhole lot of trouble. In fact, if I’d have just had ProfessorStrasser, it would have saved me a whole lot of trouble.[laughter] That was a terrific presentation.

General Assembly on State Water Allocation Policies Pursuant to

34

PATRICK PARENTEAU: THE CLEAN WATER ACT & THE SUPREME COURT

Well, I’m going to talk about the three cases that are

pending before the Supreme Court this term. And the

point of departure here is, of course, the Clean Water

Act of 1972. It starts from the premise in Section 301(a)

that all discharges of pollutants to navigable waters are

prohibited except in compliance with any required per

mit.38

The Clean Water Act prohibits any discharge of pollutants to navigable waters. So, the Supreme Court is

called upon now tojust sort of clarify a couple of minor

points. What’s navigable water? What’s a discharge?

It’s now thirty-three years after passage of the Clean

Water Act, in fact, by the time these cases are decided

at the end of the term, probably in June, it will be thirty-four. Yeah, thirty-four years. And it came as actuallyquite a surprise to many of us who follow these cases,

— and perhaps have been cursed by being involved in thisbusiness since the time these statutes were passed, that

the Supreme Court took these cases. Two of them come

out of the Sixth Circuit and involve permits underSection 404 of the Clean Water Act for the discharge ofdredge fill material to waters of the U.S., including theiradjacent wetlands.’9These cases are called Rapanos and

Carabell,4°

The third case involves the question of whether or notwater passing through a dam, in this case a dam on atributary coming out of Lake Sebago in Maine, constitutes a discharge for purposes of Section 401 of theClean Water Act, which requires that applicants for fed

eral licenses or permits that may result in a discharge tonavigable waters must obtain a water quality certifica

33 U.S.C § 13)1(a) (2006).

‘33 U.S.C § 1344 (2006).

tion from the state in which the source is located. And ofcourse, that water quality certification enables the states

to ensure that these federally licensed and permitted

projects and activities fully comply with state water

quality standards, protecting beneficial uses, protecting

instream flows, complying with anti-degradationrequirements—in short, a critical water quality andwater quantity (stream flow) tool. It’s a critical toolbecause 401 clearly brings the two together, providedof course the states have the predicate in their water

quality standards to bring the two together.

And what made it surprising that the Court took thesecases (Rapanos and Carabell) is, first of all, this is thethird trip for the Clean Water Act to the Supreme Courton what’s the basic jurisdiction of the statute. I’ll talkabout the other case (S.D. Warren) the Court has heardhere in a moment

But secondly, the Supreme Court has denied cert threetimes in cases involving almost identical questions to theones that they have now certified for review in thesetwo Sixth Circuit cases, Rapanos and Carabell. In thethird case, which is called S.D. Warren vs. Maine Boardof Environmental Protection, that’s a very surprisinggrant of cert because the Supreme Court itself, in anopinion’ by justice O’Connor—soon to be ex-justiceO’Connor, maybe— [Iaughter]the Court resoundinglyupheld the authority of states to certify compliance withwater quality standards in connection with damslicensed by the Federal Energy Regulatory Commission,which is exactly the case involved in S.D. Warren, withone important distinction, which I will discuss in amoment.4’

t’U.S. v. Rapanos, 376 F.3d 629 (6th Cir. 2004); Carabell v. U.S. Army Corps of Eng’rs, 39) F3d 704 (6th Cir. 2004).

— “Pud No. I of Jefferson co. v. Wash. Dep’t of EcoIagy 511 U.S. 700(1994).

“SO Warren Co. v. Rd. of Envtl. Prot., 2005 ME 27, 868 A.2d 210 (Me. 2005).

35

PATRICK PARENTEAU: THE CLEAN WATER ACT & THE SUPREME COURT

What’s at StakeSo let me quickly set thestage for you on what’s atstake in these cases,because this clearly is thebig casino for the CleanWater Act. The petition- tion at its source.ers’ briefs in the Rapanosand Carabell case are due today. The respondentUnited States brief is due January 7th. The oral argument has been scheduled for February 14th. The briefing schedule for S.D. Warren calls for petitioner’s briefto have been filed last week, respondent United Statesbrief to be filed December 30th. No oral argument yetscheduled in that case.

At Vermont Law School we have an environmental lawclinic, which I have the honor of directing, and our students right now are burning the midnight oil, aroundthe clock, because we are writing amicus briefs in all ofthese cases. Rapanos and Carabell have been consolidated for argument, although each of the lawyers in theRapanos and Carabell case are going to have equal timebefore the Court. They are splitting the oral argument alittle differently than they normally do. So that’s the procedural posture of these cases.

Now let me try to set the stage for what’s really at stakehere. As I said, this is ajurisdictional question: what isthe geographic scope of the Clean Water Act? Andwhat did Congress intend to be the geographic scopeof the Clean Water Act? And does Congress’s constitutional authority under the Commerce Clause extend asfar as the wetlands that are involved in each of thesecases? Those are the questions that have been certified—legislative intent and constitutional CommerceClause implications of a full exercise of that intent.

Two prior cases have dealt with these issues. The firstcase was Riverside Bayview in 1985. Interestinglyenough, the Carabell case is actually déjà vu becausethe Riverside Bayview case dealt with a residentialdevelopment in a wetland adjacent to Lake St. Clair.

“U.S. v. Riverside Bayview Homes, Inc., 474 U.S. 12? (1985).

Carabell also deals with acondominium development in a wetland adjacent to Lake St. Clair. Theinteresting thing aboutRiverside Bayview is it wasa unanimous decision, arare occurrence in the

Supreme Court on environmental cases in general, jurisdictional cases in particular. In an opinion written byJustice White, the Supreme Court upheld unanimouslythe very regulations that are at issue again in Carabell.And actually, the Court deferred to the Corps ofEngineers regulations on the extension of the term“waters of the United States” to encompass adjacentwetlands even where no hydrological connection hadbeen established.

The wetlands in Riverside were proximate, physicallyproximate to Lake St. Clair. They were not immediatelyadjacent. They didn’t abut the lake, although they wereadjacent to a navigable creek. There was no evidencethat there was a hydrological connection, in surface orgroundwater. It was an overflow situation. But there waseven no evidence that the lake overflowed all the wayto the wetlands. It was, in fact, a most remarkable casebecause the Court didn’t focus so much on the hydrology as it did on the-are you ready for this?—ecology,and the interaction of wetlands, and open bodies ofwatei and navigable waters. And the Court acknowledged that in the Clean Water Act, Congress intendedto act comprehensively to address pollutants and pollution at its source. And the Court said something evenmore remarkable, and you’d better write this down,water moves in hydrological cycles. [laughter] It’s amazing for judges to comprehend and grasp that elusiveconcept.

But no, the Court went on to say, wetlands perform allkinds of important functions like flood control; waterpurification; habitat for plants, animals, fish, and wildlife.And when Congress was talking about restoring andmaintaining the “chemical, physical, and biological

And the Court acknowledged thatin the Clean Water Act, Congressintended to act comprehensivelyto address pollutants and pollu

36

PATRICK PARENTEAU: THE CLEAN WATER ACT & THE SUPREME COURT

integrity of the nations waters—it actually meant it.44

And if you’re going to restore and maintain biological

integrity, you have to know something about aquatic

ecosystems. Yeah, they actually wrote that into the opin

ion—aquatic ecosystems—the Clean Water Act is

about protecting aquatic ecosystems, said the unani

mous Supreme Court in 198S.

SWANCC and Isolated Wetlands

A lot of us passionate, somewhat unbalanced, environ

mentalists [laughter] thought that was a wonderful thing.

We thought it pretty much ended any further discussion

about whether the Clean Water Act actually protected

wetlands. And then, many years later, in 2001, the infa

mous abandoned sand-and-gravel pit came to the

Supreme Court. This was the Solid Waste Authority of

Northern Cook County case, the infamous SWANCC

case, for those in the know. And this time, a very badly

divided Supreme Court ruled five-four; in an opinion by

the late Chiefjustice Rehnquist, that there is a limit, after

all, to how far the Clean Water Act goes. In this case, it

did not go so far as to incorporate an intra-state, non-

navigable, isolated waterbody like an abandoned gravel

pit, where the only assertion ofjuhsdiction was based

on the use of the pond by migratory birds. Migratory

birds were undoubtedly using the pond because, in

Northern Cook County there are few wetlands left to

use. But that wasn’t a significant factor in the case.

Now the narrow holding of SWANCC didn’t cause too

much concern. I guess we could live without regulating

abandoned gravel pits and still do a pretty good job of

protecting wetlands, streams, rivers, lakes, and the

aquatic ecosystem. But, unfortunately, justice Rehnquist

included a lot of statements in the opinion that caused a

‘See USC 33 § 1257(a) (2007).

v Riverside Bayview Homes, Inc., 474 U.S. 72?, 732(7985).

tremendous furor about, well, maybe the Clean Water

Act really doesn’t protect anything more than classic,

traditional, navigable waters and wetlands that are

immediately adjacent or pretty darn close to those navi

gable waters. And, indeed, lots of law review articles

were written, many trees were killed, far too much ink

was spilled in this furor. And one other thing happened.

Politically, all of a sudden, an opportunity arose for, shall

we say, those of a certain political persuasion to reduce

the burdens of regulation on private enterprise. [laugh

ter] These would be the Bush administration people

we’re talking about. And so, quickly the Bush administra

tion issued new guidance in response to the SWANCC

decision in which, among other things, it said—oh, by

the way, all “isolated wetlands” are presumably no

longer covered by the Clean Water Act, but of course, if

any of you in the regional offices of the Environmental

Protection Agency (EPA) and the Corps of Engineers

would like to nominate an isolated wetland for regula

tion, we’d be more than happy to consider your

request, along with, of course, your letter of resignation.

[laughter] Would it shock you to tell you nobody has

nominated an isolated wetland for coverage after that

guidance was issued?

You may be wondering, well what the hell is an isolated

wetland? Well of course, there is no such thing as an iso

lated wetland. Remember that water moves in hydrolog

ic cycles. But there are certainly wetlands that I have

come to call jurisdictionally-challenged wetlands. [laugh

ter] There is definitely a class of such wetlands. How big

is that class? Well, in several studies done by lots of dif

ferent people, it turns out to be something on the order

of twenty million acres of wetlands in the country.4’

&lid Waste Agency of N. Cook Count v. US. Army Corps of Eng’rs, 537 U.S. 159(2001).

— “See flner, R. W, et a1, Geographically isolated Wetionds: A Preliminary Assessment of their Characteristics and Status in Selected

Areas of the United States, U.S. Department of the interior Fish, and Wildlife Service (2002), available at

http://www. fiws. gov/nwi/Pubs Reports/isolated/report. htm.

37

PATRICK PARENTEAU: THE CLEAN WATER ACT & THE SUPREME COURT

So with the stroke of a pen, without touching thestatute, without amending the regulations—because, bythe way, the SWANCC Court didn’t overturn any regulations- this “guidance” overturned a decision to assertjurisdiction based solely on use by migratory birdsalone, period, that’s all it did. But taking advantage ofsome ambiguous language of the opinion, which is muchbroader than that, the administration wrote off twentymillion acres, potentially, of wetlands that would havebeen protected by the Clean Water Act.

Then, the administration decided to do something evenbolder. It decided to float what might be called a trialballoon. It’s called in Washington, DC-ese, an “advancednotice of proposed rulemaking;’ which went somethinglike this: to all you folks out there in America, and particularly to those folks in the National Association ofHomebuilders, how far back should we roil the jurisdiction of the Clean Water Act in response to the SupremeCourt’s decision in SWANCC? Well, much to the WhiteHouse’s surprise, the answer that came back from fortystates, including your honorable state, was, don’t youdare.

Arizona, for example— as we’ve heard Dean Sheldondiscuss—is in a part of this country that doesn’t have alot of water. And Arizona sat down, and crunched somenumbers, and said: “Let me understand this, if you’retalking about rolling back the jurisdiction to navigablewaters and their adjacent wetlands, by our calculationroughly ninety-seven percent of the water in Arizonawould not be covered by the Clean Water Act. Soyou’re basically saying the Act is not going to apply inArizona. And all these programs that we have (remember, the jurisdiction of the Clean Water Act undergirdseverything)—water quality standards, permitting, oilspill, 401 certifications, funding—everything the CleanWater Act does depends on the definition of navigablewater. So, the White House thought better of it anddecided this trial balloon just lost all of its helium, andthey dropped the idea of a rule.

‘3Rice v. Harken Exploration Co., 250 F3d 264 (5th Cir, 2001).

SWANCC and the Lower CourtsSo what we have now, and in the run-up to these decisions in Rapanos and Carabell, is the rubber match. TheClean Water Act is one-and-one before the SupremeCourt. You might be curious about what has happenedin the lower courts since SWANCC was decided in2001.

Well this is a fascinating case study in: does what theSupreme Court says really matter? And another fascinating thing about it is, you might have thought, basedon some ofmy, perhaps, partisan comments about thecurrent administration, that certainly you would see theDepartment of justice taking a dive or two in cases, asthey are wont to do under the Endangered Species Act,quickly settling lawsuits challenging critical habitat designations, for example. But no, something quite remarkable about our struggling democracy has happened inthe case of the Clean Water Act and the United Statesgovernment’s position in court defending the jurisdictional reach of the Clean Water Act, and that is that thecareer lawyers in the Department of justice have beenspectacularly successful in preserving the jurisdiction ofthe Clean Water Act. There have been eighteen courtof appeals decisions since SWANCC, in five differentcircuits: the Fourth, the Fifth, the Sixth, the Seventh,andthe Ninth. The government has won seventeen of thosecourt of appeals decisions outright. The one case theylost was out of the Fifth Circuit, which is the outlier circuit on these jurisdictional questions.18 It was a caseunder the Oil Spill Liability Act, which uses the samejurisdictional definition of navigable waters as the CleanWater Act, hence the connection to SWANCC. But evenin that case, those of us in academia who know Latinbetter than anybody else, [laughter] would say thosecomments were really obiter dictum. They really werenot necessary to the holding of the case because therewas an oil spill on the ground, no discharge to water atall. The court was really speculating on what theSWANCC decision might have meant if, in fact, therehad been a discharge to the stream that was involved or

38

PATRICK PARENTEAU: THE CLFAN WATER ACT & THE SUPREME COURT

the groundwater underlying the area where the spilloccurred was connected to navigable water.

But, in the interest of full disclosure, in another case, theNeedham case, the Fifth Circuit clearly expressed its disagreement with its sister circuits, all the other four sistercircuits, that had ruled in favor of a broad application ofthe Clean Water Act and a narrow interpretation of theSWANCC decision.19 So, if you really want to stretch,you do have something like a potential conflict in thecircuits. But remember what I said, the Supreme Courtdenied cert three times before these cases (Rapanosand Carabell) and in the last two of those denials, theNeedham case was the rationale for the Court takingcert, and it did not do so.5°

So, the governments trackrecord in the court ofappeals, is hard to beat.How about the lowercourts? There have been

Career lawyers in

about twenty-three districtcourt opinions and the federal government has won allof them.5’ So the body of law that has developed in thelower courts is very, very strongly in favor of a broadreach of the Clean Water Act to, among other things:tributaries; headwater streams, whether they are intermiftent or perennial, whether they are natural or artificial; and the adjacent wetlands that go with those tributaries, no matter how remote from the traditional navigable waters, such as open waters, lakes, major rivers,and so forth. So this case law has explored all kinds ofdifferent connections between wetlands and streams,both surface and groundwater connections, both hydrological connections and ecological connections. Thebody of law that’s developed is rich, it’s robust, and it

strongly supports assertion of the Clean Water Act inexactly the way the Riverside Bayview talked about—to

“US. v. Nealham (In re Needham), 354 f.3d 340 (5th Cir 2003).

What the Chiefjustice ThinksBut, what really matters now is whatJustice—excuse me,Chiefjustice John Roberts thinks about all of this. Why isthat? There are four solid votes and four dissenters inSWANCC. The dissenting opinion written by justiceStevens in SWANCC, which was twice the length ofmajority the opinion written byJustice Rehnquist, wasactually a scholarly piece of work—oops, I slipped.[laughter] It was more deeply analyzed than the majority opinion. Those four votes are rock solid in favor offederal jurisdiction, if you read that dissent in SWANCC.

Likewise, I think it’s athe Department pretty solid bet that

justices Scalia andThomas would not bejoining the majority opinion asserting this kind offederal jurisdiction.Justice Kennedy? Who

knows.Justice O’Connor, if she’s there, probably not avery solid bet for this kind of extension of federalauthority that might encroach upon state authority. Shewas a member of the SWANCC majority and wouldpresumably be there. But the question is, will she bethere? If she’s not there, and if justice, Judge, Alito isthere, well now you really have an interesting question,don’t you? Because the punditry is characterizing judgeAuto as being very much in the federalist camp thatJustice Scafia would be Found in. I’m not so sure aboutthat. My judgment about Alito is still open. But the oneopinion that everyone points to, the machine gun case,certainly raises the doubt, at least, about whetherjudge,maybeJustice, Alito would be in a majority opinionupholding this kind of broad reach of the Clean WaterAct.

50The cart denials were in Deoton (4th Cir), Rapanos (6th Cir.) (the criminal conviction, and Needham (5th Or).

5’See Patrick Porenteau, Preemptive Surrender, National Wetlands Newsletter, Environmental Law Institute (May-June 2005,1, availableat hnp://www2 elLorg/nwn/nwnorchive/27-O3ortides.chn.

cover the aquatic ecosystem.

ofjustice have been spectacularlysuccessful in preserving the jurisdiction of the Clean Water Act.

39

PATRICK PARENTEAU: THE CLEAN WATER ACT & THE SUPREME COURT

So, that leaves John Roberts. And, of course, everybodyis analyzing re-analyzing his famous quote in theRancho Viejo case about the hapless toad.52 If youremember the run-up to his nomination and confirmation1 people were talking about, well, he made this dis

paraging remark about the arroyo toad, who lived only

in that county in California, as Justice Roberts said, for

reasons known only to the toad. [laughter] And a lot ofpeople have speculated that he certainly is not a verysure vote for upholding a broadextent of Commerce Clauseauthority on behalf of theCongress. I actually don’t readhim that way, and I don’t readhis dissent in that case that way.We are writing our brief forJustice Roberts because I feelthat he’s the swing vote in thesecases. I think he is the only one capable, frankly, of looking at the precedent of Riverside Bayview, and thinkinghard, carefully, deeply, and intellectually about whetheror not the government should have the authority to regulate discharges of pollutants to the entire tributary system, including its associated wetlands, which, after all,

determine not only the quality of navigable waters butwhether there are navigable waters at all.

HeadwatersThe thrust of our brief is using the knowledge thatwe’ve gained over the last thirty plus years that showsjust how interconnected these systems really are. Mostof the watersheds of this country are headwaters. Thehead of navigation in most watersheds is something likeone percent of the water in the watershed.53 Gee, where

does the water in the navigable waters come from? Itcomes from rainfall, snow melt, trickles, springs, seeps,rilis, runs, riffles, streams, creeks, rivers, bigger, bigger,growing, growing That’s where it comes from.

Do you want to prevent pollution from getting to the

Shepaug River? You’d better go to the headwaters of

the Shepaug River. Because if you draw a line demarcat

ing where jurisdiction wilt end—no jurisdiction beyond

this identifiable ordinary high water mark—then, if I’m

one of the less scrupulous developers, of which there

are none, [laughter] I may be tempted to put my pipe

here, one foot above the line you drew. And if you draw

it here, then I’ll put it here, and here, and here. Andactually, some of the casesmake that point very, very dramatically.5

The science on headwaterstreams and wetlands shows

how important they are inmaintaining base flows, main-taming water supplies. I’ve

heard a lot of talk about water supplies here. Well, in

response to this Advance Notice of ProposedRulemaking (ANPRM) that I mentioned, some folks inPennsylvania decided to take a look at: where does our

water actually come from for, say, Philadelphia? And

what they found is that it comes primarily from headwa

ter streams. So take headwater streams out of the Clean

Water Act and ask what then happens to our water supply? It’s also the case that science has demonstrated and

quantified the incredible value that headwater streams

and their associated wetlands play in nutrient removal

and sediment retention. That’s where that all occurs. It

doesn’t occur in the main-stem river. The water quality

purification and maintenance function of watershedsoccurs primarily in the headwaters. So we’re going to

borrow from the very rich literature that’s developed

around the incredible importance of wetlands andheadwater streams in these interconnected systems andtry to appeal tojudge Roberts’ intellect. We are proposing that you need to think carefully about what

s2RanChO VieJo, EtC v. Norton, 355 U.S. App. D.c. 303 (D. C. Cir 2003).

53The “head of navigation” refers to the Farthest point upstream that is navigable.

TMU.S. v. Edison, 108 E3d 1336(11th Cir. 7997).

The science on headwaterstreams and wetlands showshow important they are inmaintaining base flows,maintaining water supplies.

40

PATRICK PARENTEAU: THE CLEAN WATER ACT & THE SUPREME COURT

you’re about to do with the nation’s premier water-quality and, indirectly, water-quantity law.

Mr. RapanosSo, a couple of things I can’t resist to say about thenature of these two cases. First, Mr. Rapanos. It’s a goodthing this is not an action in equity because here’s whatMr. Rapanos did: he owns three tracts of land nearMidland, Michigan, on which he wants to put a shopping mall, an obvious, essential, human need, and onethat we’re in dire straits of running out of. [laughter]So,you know, huzzah to the Rapanos family. (laughter] Sohe’s in a couple of different watersheds: the KawkawlinRiver and the Tittabawassee River watersheds. Theseare part of Lake Huron Watershed, but his land is a longway from Lake Huron, up to twenty miles away. We canstipulate it’s a long way.

What Mr. Rapanos did was to say to the state, what do Ineed to do in order to build this shopping mall? Andthe Michigan Department of Natural Resources (DNR), isone of two states in the country that actually has beendelegated the 404 permit program under the CleanWater Act. So the Michigan DNR said, “Well, first we’vegot to go out and take a look at your property to see ifmaybe there’s a wetland there:’ And they went out andthey said, “Oh, there are fifty-eight acres of wetlandshere:’ [laughter] And he said, “The hell you say, thoseare puddles:’ [laughter]And they said, “Yes, those arepuddles with facultative vegetation, hydric soil, and theproper amount of hydro-geological support:’ And hesaid, “Nop&’

So Mr. Rapanos hired a consultant. Any good developerought to have a good consultant, and apparentlyRapanos had a very good consultant. The consultantcame back and said, “Ahem, you’ve got wetlands:’[laughter]So Rapanos said, “You’re fired, and youdestroy that report:’ which the consultant apparentlydidn’t do, but rather the consultant turned Rapanos in.

Mr. Rapanos then hired a local contractor to begin, ofcourse, bulldozing and filling the wetlands. DNR came

out, issued a cease-and-desist. He gave them the one-finger salute. [laughter]So DNR said, “Gee, maybe weought to bring the gorilla in:’ So DNR did what anygood state official does when there’s no more that astate official can do, he called up EPA and said, “Comeon out here and issue an administrative order;’ whichEPA did, and Mr. Rapanos gave EPA the one-fingersalute. So, that actually got the attention of the U.S.Attorney’s office, who prosecuted Mr. Rapanos.

Mr. Rapanos has been in court now for roughly thirteenyears, involved with this particular development. He’sbeen convicted twice of criminal violations. He’s facing—he should thank God the Supreme Court struckdown the sentencing guidelines—he’s facing hard timein a federal penitentiary. One of the three cases that Imentioned where the Supreme Court denied cert washis conviction, which makes you really scratch your head,Why would the Court not take cert in a case involving acriminal conviction, where the argument was there’s nojurisdiction for the conviction, but then turn around andtake cert in a case—the civil case against Rapanos—where there was no Rule of Lenity problem with theambiguity—if there is one—in a jurisdictional predicateof the Clean Water Act. Interesting question.

So, Mr. Rapanos certainly doesn’t win any awards forgood faith efforts to comply [laughter] with the CleanWater Act; but, not daunted, the Pacific LegalFoundation, which has taken up his cause, for reasonsbest known to them, [laughter] is now arguing that noneof that matters. What matters is his wetland is twentymiles away from the only recognizable traditionally navigable water that’s involved here, and Congress certainlydidn’t intend for the Clean Water Act to go that far. Andthe Corps regulations asserting jurisdiction based onadjacency make no sense when the wetland is that farremoved. And, in any case, if Congress really did intendto go that far or to let the Corps go that far, then clearlyCongress exceeded its authority under the CommerceClause because there’s no conceivable rationale forCongress to assert jurisdiction over wetland that has noimpact whatsoever on interstate commerce, let alone,

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PATRICK PARENTEAU: THE CLEAN WATER ACT & THE SUPREME COURT

the “substantial impact” required by the Lopez andMorrison precedents.55

Mr. CarabellIn Carabell, we have a little different situation. There wehave another Michigan developer, with property adjacent or close to Lake St. Clair, applying to, again,Michigan DNR, for a permit. The DNR staff turned himdown1 but, under Michigan’s procedures, the applicantsappealed and got an administrative law judge to order

that the permit be issued. Whereupon, the Michigan

DNR once again ran to EPA, and EPA stepped in

because, even in these delegated programs, the statepermit is not the final step if EPA objects, which it did.Then the Corps of Engineers got involved, and it ultimately denied the Carabells’ permit.

This is a fifteen-acre forested wetland, the last one,according to the record, in the entire Lake St. Clairebasin, It is a very important wetland. The record is rich,and we’re mining it for the amicus brief; with detailsabout just how important this particular wetland is. Youwouldn’t maybe think that a fifteen-acre wetland was allthat important, but when it’s the last one, it is. So this is awetland that performs a lot of the traditional functionsand values of wetlands, and the Corps denied the permit. Now here’s the wrinkle in Carabell. You would think,“Well gee, that’s a slam dunk Riverside Bayview. Whywould the Court even bother taking cert in that?”

Well, you see, there’s this berm in Carabell, and whathappened in Carabell is their lot is shaped like a righttriangle, and the hypotenuse of this property has a ditchrunning along it; there’s a ditch, and a drain, and a creek,and then it eventually goes to Lake St. Claire. Out ofboth sides of the property, the water all eventuallydrains into Lake St. Claire. That’s clear. There is a clearhydrological connection between the ditch along theproperty that drains the creek into the lake. All of that is

clear. Whats at issue is, well, there’s this berm. When

they made the ditch, they did what they always used to

do, they ditched it and threw the spoil on the side. It’s

called side casting. So, you put some here, you put some

there. Both sides of the ditch have this berm running

along it, which is the spoil pile from its being excavated.

Here’s where the record gets interesting, and it will beinteresting to see how this plays out in the oral argu

ment and what the Court does with this.

Carabell claims that the berm is an absolute barrier to

any hydrological connection with these drains, and

ditches, and streams, and so forth. So he says the wet

land is truly isolated because, obviously, he wants to be

under SWANCC. This is another isolated waterbody sit

uation—no jurisdiction. The Court didn’t use any migra

tory-bird rationale for this, but it used a lot of other

rationales for why the destruction of this wetland was

going to be a problem. The government, on the other

hand, the Solicitor General, which opposed cert, makes

a pretty strong argument that the record is anything but

cleai and our examination of the record confirms thatit’s anything but clear. It appears as if this berm is actual

ly very small, like four feet, and then it overtops, and

also, it appears that there are cuts in the berm. And

here’s a practitioner’s tip: the Carabells’ lawyer actuallymade some lairly unfortunate statements in the record

about, “Oh yeah, there are cuts in the berm:’ And, ofcourse, the government’s saying, “Well water goes

through those cuts so there is a hydrological connection

here:’ But nevertheless, there is the potential, at least, for

the Court to distinguish Carabell from Riverside, based

on this berm.

Amicus briefs are being written, of course, by every

body on both sides of this. The Attorney General’s

office of the State of New York is taking the lead onorganizing a coalition of state Attorney Generals, includ

ing your Attorney General, and trying to get as many

state attorney generals to sign on to an amicus brief sup

porting the government’s position in these two cases.5°

55US. v. Lopez, 514 U.S. 549 (1995); U.S. v. Morrison, 529 US. 598 (2000).

-‘EventuoIIy 33 stoles signed on to the brief in support of the Respondent (i.e., the Army Corps of Engineers).

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PATRICK PARENTEAU: THE CLEAN WATER ACT & THE 5UPREME COURT

The only state, so far, that has declined is Alaska. [laughten Big surprise. They have too many wetlands, so they

would just as soon not have any federal designation or

authority over wetlands in Alaska.

Mr. WarrenWith the one or two minutes I have left, let me very

quickly tell you about SD Warren. That case, as I said,

involves the question whether the movement of waterthrough a dam, licensed by the FERC and up for relicensing by FERC, triggers the requirement for a waterquality certification from, inthis case, the State ofMaine. This is an interestingcase because it comes fromthe Maine Supreme CourtYou see, these state certifications are state actions, soappeals go through thestate court system. And so the U.S. Supreme Court tookcert from the Maine Supreme Court. Unfortunately,instead of just confining the analysis to whether the section 401 requirement was triggered by the relicensingof this dam, the Supreme Court of Maine reached outand decided a question that was not really presented,namely that the mere movement of water through adam could constitute the “addition of a pollutant” forpurposes of the Clean Water Act As one who has carried the albatross of the dam’s case through his wholecareer, that’s just not true. National Wildlife Federationvs. Gorsuch established many years ago that dams arenot point sources because they don’t add anythingthat’s not already in the water.57 The D.C. Court heldthat dams simply move the water from upstream to

downstream And even when hydro-electric dams movefish through the turbine and grind the fish into chumand discharge flaughterj the chum downstream, that,

said the court, is not an addition. The fish were always

there, albeit in a slightly different form. [laughter]

So the big concern, frankly, with SD Warren is thataspect of the case, and that was the focus of the certpetition—that the Maine Supreme Court has misinterpreted the requirement that a discharge actually be an

addition of a pollutant tothe waters of the UnitedStates.59 This was the issuethat was involved in thecase called South FloridaWater Management Districtv. Miccosukee Tribe ofIndians, which involved

pumping polluted storm water from one side, fromDade County, into the Everglades, over a six-footlevee.6° The Supreme Court sent that case back to thetrial court to determine whether or not there are distinctive waterbodies, because it was historically all onewetland. And if it is still considered one waterbody, then

there is no addition.

So our strategy in writing the brief in SD Warren is to try

to confine the issue to the following. There are two defi

nitions of the term “discharge” in the Clean Water Act.

One defines “discharge of a pollutant” to mean “addi

tion of any pollutant to navigable waters from a pointsource:’6 The other definition states that “the term ‘dis

charge’ when used without qualification includes a dis

Notional Wildlife Federation v. Gorsuch, 744 F.2d 963 (3rd Cir. 1984).

‘Notional Wildlife Federation v. Consumers Power Co., 862 F2d 580 (6th Cir. 1987).

“There ore two definitions of discharge found in the CWA. Section 502(12) defines “discharge of a pollutant” to mean the additionof a pollutant from a point source. Section 502(16) defines “discharge” more broadly

Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95 (2004).

“33 USC. § 1362(I2)(2007.

The mere movement of waterthrough a dam could constitutethe “addition of a pollutant’1 forpurposes of the Clean Water Act.

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PATRICK PARENTEAU: THE CLEAN WATER ACT & THE SUPREME COURT

charge of a pollutant’ There isa D.C. Circuit opinion ina case called Alabama Power which held that, for purposes of 401, the latter definition applied and a releaseof water is sufficient to trigger the water quality certilicationY Why? Heres why.

Section 401 had a predecessor. It was called Section22(b) of the old Federal Water Pollution Control Act,which predated the 1972 Act. That provision wasadded because otherwise states were preempted fromhaving any control over FERC-licensed hydroelectricdams. And the predecessor to 401 was put in so thestates would have some control over those darnsbecause they have done enormous damage to fisheriesall across the country, and the states with important fish

eries weren’t very happy about that, and worked longand hard to get Congress to give them this authority tohave some Control over these FERC licenses.

So, last point. Our argument will be: you have to giveeffect to that clear, unmistakable intent of Congress togive states the ability to review and require compliance

with their water quality standards when FERC dams arelicensed or re-licensed. And, of course, with FERC facilities, the re-licensing is the game. So a decision that relicensing that doesn’t involve some kind of discharge is

“33 U.S.C § l362(16)(2007.

“Ala. Rivers Alliance v. FERC, 355 U.S. App. D.C. 390 (2003).

not covered by 401 means there is no 401 certificationfor relicensing going forward at least, if that is the decision of the Supreme Court.

So, lots riding on these cases. Here’s my prediction. You

know, like Yogi Berra said, prediction is always difficult

when it comes to the future. (laughter] Undaunted, Ithink we will win both of these cases because we’ve gotto win them.64 Thanks.[applause]

MARTHA SMITH: Thank you Pat. Next on the agenda isour hypothetical water war that will be moderated byRalph Abeie from U.S. EPA, Region I. Ralph is theinstream and flow review coordinator. Additionally, inyour packets we have biographical information, as well

as a color handout providing background information

on the situation that they’re going to be describing.Were hoping that some members of the audience willalso be willing to take a role and contribute their twocents to the situation.

‘Subsequent to this conference, the Supreme Court issued opinions in SD. Warren and the consolidated cases of Raponos and

Corabell case. See S. D. Warren Co. v. Me. Rd. of Envtl. Prot., 126 S. Ct. 1843 (2006); Rapanos v. U.S., 126 S. Ct. 2208 (2006).

In S.D. Warren, Justice David Souter, writing for the Court, held that the water going over a dam was indeed a discharge that couldbe regulated under 0/VA, thus triggering section 401 and the state water quality certifications. Essential to the Court’s holding was its

adoption of the ordinary and natural meaning of the word discharge (to How or issue out). S.D. Warren, 126 5. Ct. at 1847.

Adapting the ordinary and natural meaning of a word is a canon of statutory interpretation when a term is neither defined by thegoverning statute, nor a term of art. The Court relied on this definition despite S.D. Warren’s arguments that a more narrow definitionwas warranted.

In the consolidated cases of Raponos and Carobell, the Court was sharply divided. Although five Justices agreed that the case should

be remanded to the lower court for further consideration, a majority of the Court could not agree on a rationale for the lawer court to

apply. Justice Antonin Scalia authored a plurality opinion loined by Justices Samuel Alito, Clarence Thomas, and Chief Justice John

Roberts. Scolia’s pivotal argument suggested that the CWA protects fewer waters than previously articulated by the Court. Particularly,

Scolia interpreted the phrase “the waters of the United States” to “include only relatively permanent, standing or flowing bodies ofwater” Rapanos, 126 S. Ct. at 222). And, referring to wetlands, Scalia suggested that the CWA only covers “those wetlands with a

44