OPINION/COMMENTARY

U.S. SUPREME COURT SHOULD RESOLVE SPLIT ON CLEAN WATER ACT

The U.S. Supreme Court should agree to hear a case that originated in Michigan in order to address the issue of what lands are “waters of the United States” under the federal Clean Water Act, a public interest law firm urged in a friend of the court brief filed today. The case concerns the decision of the U.S. Court of Appeals for the Sixth Circuit that a Michigan man, his wife, and their companies violated the law when they conducted activity on various lands that they own. The Sixth Circuit rejected the argument by John A. Rapanos that his lands are miles from navigable water and thus may not be regulated by the Environmental Protection Agency (EPA) pursuant to the Clean Water Act. “The Clean Water Act does not define the term ‘waters of the United States,’ nor does it include, let alone define, the word ‘wetland’; as a result, landowners who have been at the mercy of federal regulators must seek court rulings defining those terms,” said William Perry Pendley of Mountain States Legal Foundation, which filed the brief. “Although, in January 2001, the U.S. Supreme Court limited the EPA’s authority under the Clean Water Act, not all the appellate courts, including the Sixth Circuit, have adhered to that ruling. That is why the Supreme Court should hear this case.”...In 2001, the Supreme Court limited federal CWA jurisdiction to navigable or open water waters and waters, including wetlands, immediately “adjacent to open water”. In the years since that ruling, federal courts have disagreed over its meaning. For example, a conflict exists between the Fifth and Sixth Circuit Courts of Appeal. Mr. Rapanos seeks to resolve the conflict.....

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