Pennsylvania Governor Rendell Directs Filing of Briefs to Protect Water Supply, Control Pollution

Governor Edward G. Rendell today directed Pennsylvania to join a majority of states in filing two separate amicus briefs, commonly called "friend of the court" briefs, in important Clean Water Act cases under consideration by the U.S. Supreme Court.

The first case, S.D. Warren v. Maine Board of Environmental Protection, could decide the scope of state government's authority to mitigate the water quality impacts of hydroelectric dams and other federally licensed activities within their borders.

Two other consolidated cases, Rapanos v. U.S. and Carabell v. U.S. Army Corps of Engineers, could answer far-reaching questions about how the federal government can use the Clean Water Act to restrict development on or near wetlands that provide crucial habitat for aquatic species, help prevent floods and filter pollutants from waterways.

"Pennsylvania has a direct stake in the outcome of these cases because of the significant effect they could have on our ability to protect water supplies and keep our rivers and streams free from pollution," Governor Rendell said.

"We're committed to being good stewards for our environment," he said. "It's our job to make sure our water supply is clean and readily available and that it can be used to make Pennsylvania a better place to live, and more competitive in attracting and supporting business investment."

The Department of Environmental Protection joined the amicus brief filed Jan. 6 in the S.D. Warren v. Maine Board of Environmental Protection case to support Maine's right to regulate dams on its rivers.

Warren owns and operates five contiguous hydroelectric run-of-river dams that provide electricity to one of its paper mills. In renewing the hydroelectric licenses, the company applied for water quality certification under the federal Clean Water Act. In 2003, Maine's board approved certification with conditions to mitigate the water quality impacts of the dams. Warren appealed the conditions, claiming the state overextended its authority.

States have used their authority under the Clean Water Act to protect water quality, safeguard river ecosystems and restore fisheries. Stripping states of the ability to set conditions on the operations of hydroelectric dams would affect river health and water quality, threaten fish and wildlife habitat, and diminish recreational and economic opportunities on rivers across the nation, including Pennsylvania.

The key issue in the Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers cases is whether or not the federal government can use the Clean Water Act to regulate the discharge of fill in or near wetlands adjacent to tributaries to navigable waters. DEP joined the states in their Jan. 13 filing in support of the federal government, urging the court to uphold Clean Water Act jurisdiction over such wetlands.

Under the Clean Water Act, it is unlawful for a person to discharge any pollutant into navigable waters or into wetlands and tributaries adjacent to navigable waters. Rapanos and Carabell are challenging how the government defines "adjacent" and how it interprets the hydrologic interconnectedness of water systems.

In the amicus brief, the states argue that many states' water quality programs are tied closely to federal definitions and authority, so any changes to the definitions of waters at the federal level may compromise implementation of important state programs, which in some cases have taken years to reach their current level of effectiveness and understanding by the public and the regulated community.

The United States brought an action against developer John Rapanos for filling 54 acres of wetlands at three different sites in Michigan without a permit from either the state of Michigan or the U.S. Army Corps of Engineers. The federal government argues permits were needed because the wetlands are adjacent to, are hydrologically connected with and are part of headwater systems that provide valuable habitat for wildlife and ensure the health of larger navigable downstream waters.

In Carabell, which also originates in Michigan, the U.S. Army Corps of Engineers denied a developer's permit to fill in more than 15 acres of wetlands for housing construction. A ditch running along one edge of the property drains into a creek that eventually empties into Lake St. Clair, a navigable waterway. Because the wetlands on the property are separated from this waterway only by a man-made barrier, they are considered adjacent wetlands.

"It's vital that we participate in these cases and fight to uphold the protections in the federal Clean Water Act to ensure that Pennsylvania has at its disposal all the tools necessary to protect public health and the environment in the years ahead," DEP Secretary Kathleen A. McGinty said.