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Supreme Court splits over protecting wetlands

The Clean Water Act might not prevent building on them.

(Page 2 of 2)

Writing for the plurality, Justice Antonin Scalia said the Clean Water Act does not extend jurisdiction to channels through which water flows intermittently or channels that provide drainage for rainfall. "The [US Army Corps of Engineers'] expansive interpretation of "the waters of the United States" is ... not based on a permissible construction of the statute," Justice Scalia writes.

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Although he concurred in Scalia's opinion, Justice Kennedy said the critical issue to him is whether the land has a "significant nexus" to waters that are or were navigable – thus falling within federal jurisdiction.

Kennedy says Scalia's plurality opinion is "inconsistent with the [Clean Water Act's] text, structure, and purpose."

"Justice Scalia's opinion has language that would radically restrict the act's jurisdiction, but it appears that Justice Kennedy has a more expansive read on the term 'significant nexus,' " says Mr. Murphy of the National Wildlife Federation.

Carabells' condo plan ran into opposition

The Carabell case involves an effort to build a condominium project on a 19-acre site classified as a wetland. State officials were reluctant to allow the developers, June and Keith Carabell and Frances and Harvey Gordenker, to build on one of the last remaining pieces of wooded property in the area.

After the developers agreed to reduce the size of the project and set aside nearly four acres as a wetlands-water retention area, state environmental officials approved the plan.

Federal officials disagreed. They moved to block the project, arguing that the land fell within federal jurisdiction and could not be developed without a Clean Water Act permit. They refused to issue a permit. The developers sued and lost at both the trial court and appeals court levels.

In their appeal to the Supreme Court, lawyers for developers argued that there is no flow of water from their tract. Water is retained on the property in part because of a man-made berm between the tract and a drainage ditch. Since there is no flow to a tributary of a "navigable water," there is no federal jurisdiction, the developers' lawyers say.

The Rapanos case involves efforts by developers John and Judith Rapanos to build on three tracts in Michigan. Like the Carabells, they challenged the assertion of federal authority over their land. The Environmental Protection Agency claims Clean Water Act jurisdiction because rainwater runoff from each of the three properties drains into a tributary that leads to "navigable waters." Lawyers for Rapanos argued there must be a stronger connection than mere runoff from a property to trigger federal authority.

Court has confronted the issue twice before

The Supreme Court has addressed similar issues twice in the past 20 years. In 1985, the court ruled 9-0 that the act's jurisdiction extends to wetlands that are adjacent to navigable waters. But the high court added in a footnote that the justices were not expressing an opinion about whether the jurisdiction extends to wetlands that are "not adjacent to bodies of open water."

The second case was decided in 2001.

In that case, the court ruled that the act does not cover an abandoned sand and gravel pit that had filled with water. The Corps of Engineers had claimed authority over the site by saying that migratory birds used the pond as habitat. The justices ruled 5-4 that the Corps was claiming powers not granted by Congress by attempting to extend its jurisdiction to ponds with no connection to navigable waters.

Linda Feldmann contributed to this report.