Archive for Wednesday, January 10, 2001

Court narrows scope of Clean Water Act

Kansas farmers applaud decision

January 10, 2001

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Agricultural leaders Monday cheered a U.S. Supreme Court decision limiting the scope of the Clean Water Act, saying it could force the federal government to back off on too-strict regulation of Kansas water quality standards.

But environmentalists said the decision, though disappointing, won't do much to change a current lawsuit that seeks Kansas enforcement of the landmark act.

Environmental and agricultural leaders say a U.S. Supreme Court
decision handed down Tuesday may affect water quality standards for
Kansas. The court ruled 5-4 that the federal Clean Water Act should
not prevent a group of suburban Chicago municipalities from
building a landfill atop seasonal ponds used by migrating birds.
The abandoned gravel pits of the case are similar to farm ponds
such as this one located south of Lawrence.

Environmental and agricultural leaders say a U.S. Supreme Court decision handed down Tuesday may affect water quality standards for Kansas. The court ruled 5-4 that the federal Clean Water Act should not prevent a group of suburban Chicago municipalities from building a landfill atop seasonal ponds used by migrating birds. The abandoned gravel pits of the case are similar to farm ponds such as this one located south of Lawrence.

Overturning a 15-year-old environmental regulation, the court's conservative majority ruled 5-4 that the Clean Water Act does not authorize the federal government to regulate the dredging and filling of isolated ponds and wetlands.

Depending on how future rulings define "isolated," the decision could remove 20 percent of the country's waters from federal protection. It leaves in place federal regulation of wetlands that, while not actually navigable themselves, abut navigable rivers or their tributaries, an interpretation of the Clean Water Act the Supreme Court upheld in 1985.

The abandoned gravel pits involved in the Illinois case before the court are similar to ponds on Kansas farms, a fact that may sway the Environmental Protection Agency's new regulations on Kansas water standards. Those standards are expected to be announced in the next few months.

The EPA announced proposed changes to Kansas water laws in July, then conducted public hearings on the changes. The Kansas Sierra Club and the Kansas Natural Resource Council since have filed a lawsuit against the EPA, saying the agency failed to instigate its new standards 90 days after they were published, as required by law.

In Kansas, the battle has been over which bodies of water are covered under the Clean Water Act. Farmers have worried that stricter standards might apply to their ponds, which they say shouldn't have to be as clean as waters designated for public use. The EPA has maintained that such standards wouldn't apply to farm ponds.

Still, Steve Swaffar, director of environmental programs at Kansas Farm Bureau, said he thought the decision should ease Kansas farmers' concerns, even though it involved gravel pits instead of ponds.

"I guess they would be considered similar bodies of water," he said. "They are not large in nature. They are not used for interstate commerce. And they are not by and large used for the public to use."

However, Swaffar said Farm Bureau and other agricultural organizations would consider suing the EPA if farm ponds were included in the new guidelines.

Kansas Department of Agriculture Secretary Jamie Clover Adams agreed that the decision could be positive for farmers. She also said it would help the state control its own water guidelines.

"In two places in the decision, it talks about the rights of the state," Clover Adams said. "The Supreme Court recognizes the rights of the state in water rights and property rights."

Writing for the majority in Tuesday's decision, Chief Justice William Rehnquist said that Congress did not intend the Clean Water Act to cover such small bodies of water as the gravel pits. Likewise, a 1986 refinement of the environmental law that deals specifically with the needs of migratory birds does not give the federal government such control, he added.

"Permitting the (government) to claim federal jurisdiction over ponds and mudflats" such as those in the Illinois case "would also result in a significant impingement of the states' traditional and primary power over land and water use," Rehnquist added.

Justices Antonin Scalia, Clarence Thomas, Anthony Kennedy and Sandra Day O'Connor joined Rehnquist's opinion. Justices David H. Souter, Stephen J. Breyer, Ruth Bader Ginsburg and John Paul Stevens dissented.

"Today the court takes an unfortunate step that needlessly weakens our principal safeguard against toxic water," Stevens wrote for the minority.

Charles Benjamin, a Lawrence attorney who is representing the Kansas Sierra Club in its lawsuit against the EPA, downplayed the importance of the decision. He said the lawsuit involves how the EPA followed Clean Water Act guidelines, not which bodies of water the act involves.

"That might ease the fear of some people on the ponds issue," he said. "I don't think, in my opinion, it's going to affect things here in Kansas."

Attorney John Simpson, who represents the Kansas Natural Resource Council, agreed that the decision shouldn't affect the lawsuit against the EPA. But he said it could change the way the EPA treats small bodies of water.

"Obviously if the Supreme Court said the full waters of the U.S. don't include certain bodies of water, that might affect what's going on in Kansas," he said.

The case is Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 99-1178.

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