For Immediate Release: February 21, 2006

Supreme Court Justices Grapple With Scope of Clean Water Act, Role of Wetlands in Protecting Navigable Waters

Today the U.S. Supreme Court heard oral argument in a pair of historic Clean Water Act cases, Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers. In the first cases to be argued before new Associate Justice Samuel A. Alito Jr., the Justices pressed counsel for the federal government and for developers on the intended scope of the Clean Water Act. A decision is expected in these cases, the first environmental cases to be heard by the Roberts Court, in late spring.

“Whether skeptical or sympathetic to federal wetland regulation, several Justices seemed unclear about what wetlands are and how they protect navigable waters,” said Leslie Carothers, President of the Environmental Law Institute® (ELI). “ELI’s brief, among others, documents in detail the functional connection between wetlands and the health of downstream waters. In our view, these functions—flood control, pollutant filtration, and habitat—provide the ‘significant nexus’ the Chief Justice was looking for during today’s argument.”

These two cases involve developers who sought to fill ecologically valuable wetlands in Michigan to build condominiums (Carabell) and a shopping center (Rapanos). Indeed, Mr. Rapanos filled his wetlands in violation of cease-and-desist orders from the State of Michigan, and was eventually convicted of a criminal violation of the Clean Water Act. In each case, the wetlands adjoin tributaries of navigable waterways.

Last month, the Institute filed its first-ever “friend of the court” – or amicus curiae – brief in support of the federal government’s position in Rapanos and Carabell. ELI is represented in the case by former Solicitor General of the United States Seth P. Waxman, now a partner with the law firm of WilmerHale.

ELI brings unparalleled legal and policy expertise to these cases, and to the field of wetlands protection generally. Founded in 1969, at the dawn of the modern era of environmental law, the Institute is a leader in the development and implementation of laws and policies for preserving wetlands and other water resources. ELI has extensively researched and reported on aspects of the collaborative federal-state framework governing wetlands conservation. Since 1979, ELI has published the National Wetlands Newsletter, now the preeminent journal on wetlands policy. And for more than a decade, ELI has co-sponsored the National Wetlands Awards, collaborating with members of Congress and EPA to recognize individual achievement in wetlands conservation at the regional, state, and local levels. Over 3,000 environmental professionals from law firms, government, industry, public interest organizations, and academia support ELI through its Associates Program.

For further information from the Environmental Law Institute, please contact John Thompson at 202-939-3833 or pressrequest@eli.org.

The Environmental Law Institute® is an independent, non-profit research and educational organization based in Washington, DC. The Institute serves the environmental profession in business, government, the private bar, public interest organizations, academia, and the press. For further information from the Environmental Law Institute, please contact Brett Kitchen at 202-939-3833 or pressrequest@eli.org.
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