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U.S. Supreme Court Decision Fails to Clarify Clean Water Act

By J.R. Pegg

WASHINGTON, DC, June 19, 2006 (ENS) – The U.S. Supreme Court on Monday ruled that there are limits to the federal government’s authority to regulate wetlands under the Clean Water Act, but failed to agree on the confines of that power. The ruling does little to quell the controversy over the scope of the law and adds to the uncertainty about the federal government’s responsibility to protect wetlands.

Chief Justice John Roberts expressed disappointment the court did not agree to define the limits of the law.

"Lower courts and regulated entities will now have to feel their way on a case-by-case basis," he wrote in a separate concurring opinion.

The 5-4 ruling relates to two consolidated cases involving two Michigan developers – John Rapanos and Keith Carabell. Both sought to develop lands deemed wetlands by federal regulators, who refused to allow the development under the authority of the Clean Water Act.


One of the properties at issue, a Michigan tract owned by John Rapanos, shown here under cultivation with corn. (Photo courtesy Mackinac Center for Public Policy)
The 1972 law makes it illegal to discharge dredged soil or fill material into "navigable waters" – or waters, including wetlands, adjacent to navigable waters - without a permit. The plaintiffs in both cases claimed that the wetlands in question were not connected to "navigable waters" and thus outside the federal government’s jurisdiction.

But lower courts found that in both cases the wetlands in question were adjacent to ditches and man-made drains that connected to navigable waters and sided with federal regulators.

Those decisions exceeded the authority of the law, according to the plurality opinion offered by the court – authored by Justice Antonin Scalia and joined by Roberts and Justices Clarence Thomas and Samuel Alito, Jr.


Chief Justice of the U.S. Supreme Court John Roberts (Photo courtesy U.S. Supreme Court)
The law only grants the authority to regulate wetlands directly connected to navigable waterways, wrote Scalia, who expressed frustration and hostility at the extent of the federal government’s regulation of wetlands.

He wrote that the Army Corps interpretation of the law "has stretched the term ‘waters of the United States’ beyond parody,’" and added that in its permitting process, the Army Corps "exercises the discretion of an enlightened despot."*

The Clean Water Act does not cover "channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall," Scalia wrote, and a wetland may not be considered adjacent to navigable waters by based on a "mere hydrologic connection."

In a dissenting opinion, Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer concluded the decisions by the Army Corps to protect wetlands adjacent to tributaries of navigable waters reflected a "reasonable interpretation of a statutory decision."

The main intent of the Clean Water Act is to "restore and maintain the chemical, physical and biological integrity" of the nation’s waters, wrote Stevens, who authored the dissenting opinion.

"Rejecting more than 30 years of practice by the Army Corps, the plurality disregards the nature of the congressional delegation to the agency and the technical and complex character of the issues at stake," Stevens wrote.

The key voice in the court’s overall opinion, Justice Anthony Kennedy, took a position largely in the middle. Kennedy sided with the majority, but rejected much of its rationale and only agreed to remand the cases back to the lower courts. Under precedent, Kennedy’s view is the controlling opinion of the court.

The cases should be remanded to the lower courts for them to consider whether the specific wetlands at issue "possess a significant nexus with navigable waters," Kennedy wrote.


Associate Justice of the U.S. Supreme Court Anthony Kennedy (Photo courtesy Congresswoman Mary Bono)
He criticized Scalia’s opinion as "inconsistent with the Act’s text, structure and purpose" and wrote that the overall tone and approach "seems unduly dismissive of the interest asserted by the United States in these cases."

"Important public interest are served by the Clean Water Act in general and by the protection of wetlands in particular," Kennedy wrote.

Kennedy also took issue with the dissenting opinion, which he indicated offered the Corps too much freedom.

"… the dissent would permit federal regulation whenever wetlands lie alongside a ditch or drain, however remote and insubstantial, that eventually may flow into navigable waters," Kennedy wrote. "The deference owed to the Corps’ interpretation of the statute does not extend so far."

Development interests and private property advocates said the ruling advances their view that the federal government is overzealous in its attempts to control development.

"The Court has repudiated overreaching by the federal government," said Reed Hopper, a principal attorney for the property-rights law firm Pacific Legal Foundation.

"It is not the role of the federal government to micromanage every pond, puddle, and ditch in our country," said Hopper, whose firm represented Rapanos.

The decision is a mixed bag for environmentalists.

On one hand, it does not rewrite the law – a possibility some had feared due to the conservative tilt of the court.

But according to Bob Perciasepe of the National Audubon Society, it will make it much harder for agencies to determine what bodies of water qualify for protection under the Clean Water Act.

"Muddying the regulatory waters, as the court has done, almost always works in favor of polluters and will take years to sort out," he said.

The concern over isolated wetlands stems from the important roles they play in providing flood control, natural water purification and essential wildlife habitat.

More than half the wetlands in the lower 48 states have been destroyed – the federal government estimates some 105 million acres remain.

The court’s decision can be found here.

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