One of the Supreme Court’s most significant rulings in years on water pollution was somewhat confusing when decided, but it seems even less clear after two years. That was the ruling in Rapanos v. U.S. (04-1034), seeking to clarify just how far the government could go to regulate pollution of wetlands — that is, the sometimes dry, sometimes damp, sometimes flowingly wet lands that are — sometimes — protected by the Clean Water Act.

In one of five opinions that emerged in Rapanos, Chief Justice John G. Roberts, Jr., wrote: “It is unfortunate that no opinion commands a majority of the Court on precisely how to read Congress’ limits on the reach of the Clean Water Act.  Lower courts and regulated entities will now have to feel their way on a case-by-case basis.”

And, perhaps not surprisingly, the lower courts have split on what Rapanos means.  The lead opinion in that case, written by Justice Antonin Scalia, took the narrowest view of government authority to regulate wetlands. A somewhat broader view was expressed in a concurrence by Justice Anthony M. Kennedy. A dissent by Justice John Paul Stevens argued for an even greater authority, but said the Clean Water Act would at least apply if either the Scalia or Kennedy approach were followed.

The core issue dividing the lower courts since then is which, if any, of the several opinions actually states the law on the Act’s reach.  Some have said Scalia’s approach controls, others have opted for Kennedy’s, and at least one has said either.

The Supreme Court has so far declined to take on the new dispute; it turned down appeals twice last October and once in June, each time apparently accepting the view of the Justice Department (on the winning side in lower courts in each of those case) that those particular appeals were not proper ones for review.

The issue, however,  persists, and the Justice Department is itself pondering a possible appeal after losing a case in the Eleventh Circuit Court — a decision that solidified the lower courts’ division on Rapanos‘ scope.  The case is U.S. v. Robison; the government has until Aug. 22 to decide whether it is going to appeal.

And the Department will have a chance to respond even sooner because of a pending appeal in a case from the Fifth Circuit (the U.S. reply is currently due Aug. 6).  That new case is Lucas, et al., v. U.S. (07-1512, see the petition and appendix here). In the meantime, Justice Antonin Scalia has pending before him a plea (docket 08A70) asking him to release from prison the three individuals convicted in that case of violating the Clean Water Act.  That application was filed Thursday.  Scalia could act on it alone, or refer it to the full Court.  (Both documents contain large files.)

The application concedes that “release on bail” pending Supreme Court action on an appeal “is granted only in extraordianary circumstances.”  But, it adds, “if ever there was a case warranting release pending certiorari, this is it.” The case reflects, it argues, the split in the lower courts on just what kinds of wetlands the Clean Water Act allows the government to regulate, and having that uncertainty is especially critical in a criminal case based largely on claimed violations of that Act.  Individuals faced with criminal prosecution under the Act should not have to guess what is allowed or forbidden, it argued.

The Lucas application argued that it is likely, given the conflicting views of lower courts, that the Supreme Court will now step in to resolve that dispute, and added that there is a good chance it will overturn the Fifth Circuit ruling and thus overturn the convictions in that case.

In a sweeping criminal prosecution, with 41 counts, Mississippi developer Ralph J. Lucas, Jr., his daughter Robbie Lucas Wrigley and M.E. Thompson, Jr., a civil engineer hired by Lucas, were charged with CWA violations and related conspiracy and mail fraud for their roles in developing a mobile home project — Big Hill Acres — in Vancleave, Miss.

They were charged with filling in wetlands for home sites, and installing septic systems (there was no local sewer system) that, in a number of homes, failed, leaking to noxious backflow into bathrooms, kitchens and laundries.  The prosecution charged that the property was a wetland, and that water and fetid fluids flowed from it into nearby ditches or tributaries.

Lucas was sentenced to nine years in prison after being convicted on all 41 counts. His daughter and Thompson, convicted on fewer counts, were each sentenced to seven years and three months. The three were also ordered to pay restitution of nearly $1.4 million. Heavy financial penalties were levied on two corporations. Each of the three individuals is now serving their prison sentences; the bail application seeks their release pending Supreme Court action on their underlying appeal.

The appeal contends that the Fifth Circuit misapplied the Rapanos ruling, and contributed to the conflicts in the lower courts that subject “landowners nationwide to a vastly increased risk of civil liability and, as in this case, criminal prosecution and incarceration.”

Specifically, the appeal argues that the Fifth Circuit read the Rapanos decision as applying the CWA to any wetlands that merely are neighbors to branches of navigable waters. While saying it was applying both the Scalia and Kennedy approaches, the Circuit Court, according to the appeal, actually fashioned an even broader scope for the Act.

In addition, the appeal says, the Circuit Court for the first time ruled that the CWA applies to individual septic systems, rather than only to water or sewage treatment plants, and also — for the first time — made it a crime merely to design a septic system that was flawed, resulting in leaks.

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