As the U.S. Supreme Court begins its new term, construction officials will be watching the cases that deal with water issues. Two cases on the court's docket focus on aspects of the Clean Water Act, and a third centers on whether timberland damaged by water releases from an Army Corps of Engineers dam are a federal "taking" of property.
First up is the takings case, Arkansas Game & Fish Commission v. U.S., on which the court scheduled an Oct. 3 oral argument. Timber on land the Arkansas commission owns was flooded by Corps water releases from Clearwater Dam every year from 1993 through 1998. The commission says that action constitutes a government "taking" of its property. A taking would require federal compensation.
In 2009, the Court of Federal Claims awarded the commission $5.8 million; however, in March 2011, a federal appellate court reversed the claims court decision, finding that the Corps' actions were temporary. The federal government in its brief sided with the appeals court's view that the flooding was temporary and did not constitute a taking.
Last December, the National Association of Home Builders and the American Forest Resource Council filed a joint brief, asking the Supreme Court to take the Arkansas case. It said, "This matter presents an excellent opportunity to clarify federal takings law as it relates to temporary physical takings."
The high court also will hear two Clean Water Act cases. Both are challenges to rulings by the 9th U.S. Circuit Court of Appeals. Nick Goldstein, American Road & Transportation Builders Association vice president of environmental and regulatory affairs, says, "Any time the court takes a Clean Water Act case, we pay pretty keen interest to it because, depending on which way the ruling goes, it could be used as a way to redefine limits between what's federal [jurisdiction] and what's state under the Clean Water Act."
In one case, which consolidates two similar matters, the court will determine whether runoff from forest roads requires a Clean Water Act National Pollutant Discharge Elimination System permit, even though the U.S. Environmental Protection Agency has said such runoff isn't industrial stormwater.
The second case on the docket, Los Angeles County Flood Control District v. Natural Resources Defense Council, centers on whether, under the Clean Water Act, there can be a pollution "discharge" from an "outfall" when water moves from part of a river through a concrete channel into another part of the river. The flood-control district contends the appeals court's ruling runs counter to a 2004 Supreme Court decision in a water-transfer case.
Aaron Colangelo, an NRDC attorney, says he doesn't think the high-court ruling will deal with broad Clean Water Act jurisdictional issues. He says, "This one is really a straightforward enforcement case about the interpretation of one permit" as it applies to the L.A. County agency's municipal separate storm sewer system.
Colangelo says the Supreme Court declined to take up the wider question of whether construction of channels or other improvements removes that part of a river from federal jurisdiction.