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The second Clean Water Act case the court accepted is quite similar, but in this case, Carabell v. United States United States Engineers, No. 04-1384, the property owners did seek a permit under the Clean Water Act to build a condominium complex on 19 acres of largely forested wetlands.
They filed suit when the permit was denied, now arguing that the property was not subject to federal jurisdiction. They maintained that an artificial berm that separated their property from a drainage ditch deprived their land of a "hydrological connection" with any navigable waterway. The Federal District Court in Detroit, as well as the Sixth Circuit, found that the property met the federal regulatory definition as "adjacent to tributaries of a traditional navigable water."
The court accepted a third Clean Water Act case on Tuesday that presents a different issue under a separate section of the law. The question in that case, S. D. Warren Co. v. Maine Department of Environmental Protection, No. 04-1527, is whether a dam through which water flows requires certification under the statute even if nothing is added to the water, either from outside or by the dam itself.
The Clean Water Act requires a "water quality certification" before making "any discharge" of a "pollutant" into navigable waters. The owner of five 100-year-old hydroelectric generating dams in Maine, which provide electricity to a paper mill, is arguing that flowing water does not constitute a "discharge."
The Maine Supreme Judicial Court rejected that argument on the ground that "water that has left its natural state and has been subjected to man-made control" could be considered a discharge. In this case, the state's environmental agency was administering the law in cooperation with the Federal Energy Regulatory Commission, which was reviewing a license renewal application from the company that owns the dams.
Separately on Tuesday, the court rebuked the Sixth Circuit for improperly dismissing a petition for habeas corpus from a man convicted of murder in the Michigan state courts. In an unsigned opinion, without dissent, the court said the petition filed by the defendant, Paul A. Dye, had been sufficiently precise in its allegation of prosecutorial misconduct and "it was error for the Court of Appeals to conclude otherwise." The case was Dye v. Hofbauer, No. 04-8384.
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