The U.S. government, arguing that the lower courts have fallen into confusion and disagreement over federal power to protect wetlands, has urged the Supreme Court to make clear what it meant in the “highly fractured” ruling two years ago in Rapanos v. U.S. (04-1034) — a significant decision on the scope of the Clean Water Act.

The Justice Department filed an appeal Thursday on that issue in U.S. v. McWane, Inc., et al. (docket 08-223). The petition, together with an appendix with Eleventh Circuit Court opinions, is now available and can be downloaded here.

The Eleventh Circuit, in a post-Rapanos decision last October that created a direct conflict among lower courts, ruled that the federal law’s ban on pollution into “waters of the United States” does not apply to wetlands unless they have a “significant nexus” to traditional streams.  The Circuit Court found that legal formula in a separate opinion in Rapanos by Justice Anthony M. Kennedy, writing only for himself.  That, the Eleventh Circuit said, is the only standard that governs.  (An earlier post discussing this legal dispute can be found here.)

The new appeal contends that the proper way to read the Rapanos decision is to apply the view “endorsed by eight Members of this Court in Rapanos — the four-Justice plurality and the four dissenters.”

The Department contended: “The court of appeals’ analysis misinterprets Rapanos and this Court’s precedents governing how to interpret fractured decisions; creates bizarre outcomes;…will seriously impede enforcement of the CWA; and presents an issue of exceptional importance both to the government and to the regulated community.  That decision should not be permitted to stand.”

The federal appeal is one of two asking the Court to re-visit and clarify its Rapanos decision.  The other is Lucas v. U.S. (07-1512), filed in early June.  The Justice Department is scheduled to respond to that petition by Friday, but, in a footnote in its McWane appeal, the Justice Department said that the federal case “provides a more suitable vehicle” for confronting the Clean Water Act issue.

Under that Act, no one may discharge pollutants into “navigable waters,” defined as “the waters of the United States.”  The government interprets that last phrase as meaning traditional rivers and their tributaries, and wetlands that are “adjacent” to such rivers and streams.

In Rapanos, the four Justices supporting the main opinion, written by Justice Antonin Scalia, said the waters protected by the Act are those that are “relatively permanent, standing or continuously flowing bodies of water” connected to traditional rivers or streams that can carry navigation, as well as wetlands with “a continuous surface connection to such water bodies.”

Justice Kennedy, however, said the Act protects wetlands that “possess a ‘significant nexus’ to waters that are or were navigable in fact or that could reasonably be so made.”  The four dissenters said lower courts could apply either the Scalia or Kennedy approach, although they themselves preferred the long-standing government definition that protected more wetlands from pollution.

The Eleventh Circuit, however, using the concept that Kennedy’s opinion turned out to be controlling because it provided the reasoning that created a majority for the outcome in Rapanos, said that that was the controlling standard.  The Circuit Court thus overturned convictions under the Act for dumping large quantities of untreated industrial waste water from a pipe-making foundry in Birmingham, Ala., into a creek that flowed into other permanent streams feeding into navigable waters in the traditional sense.

In its appeal to the Supreme Court, the Justice Department said that the creek into which the waste water was discharged “flowed year-round and…fed, through perennial waters, into a traditional navigable river. That evidence proved that the site of the discharges was part of the ‘waters of the United States’ under the standards” endorsed by the plurality and dissenters in Rapanos.

The nation’s waters, the petition said, “include innumerable perennial or relatively permanent tributaries that connect to traditional navigable waters.  The health and vitality of those interconnected waters depends critically on protection of the tributary systems from pollutants that naturally wash downstream.”

Under the Kennedy “significant nexus” standard, the petition argued, juries would be asked to weigh complex scientific evidence and have to parse conflicting experts’ testimony.”  This could lead to differing or directly conflicting outcomes, jury by jury, the petition contended.

The response to the government appeal is now due Sept. 22, unless the time for filing is extended.

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