Supreme Court splits over protecting wetlands

The Clean Water Act might not prevent building on them.

The federal government does not have the power to reach far upstream to protect every ditch and wetland in a watershed.

In a ruling restricting federal authority to protect the environment, the US Supreme Court on Monday said the reach of federal regulators under the Clean Water Act is limited. But the high court's nine justices were unable to reach majority agreement about how and where to draw those limits.

The result is a decision best described as 4-1-4. Four justices agreed that the law called for a restrictive view of the scope of federal jurisdiction to reach remote wetlands. Four other justices concluded that the statute permits the government to take upstream actions to prevent downstream degradation of federal water resources.

At dead center of the court sits Justice Anthony Kennedy, who provided the critical fifth vote on the restrictive side of the case. That action sends the two consolidated cases back to the lower courts where judges must divine a coherent approach to federal jurisdiction from the high court's splintered decision.

"It is unfortunate that no opinion commands a majority of the court on precisely how to read Congress' limits on the reach of the Clean Water Act," writes Chief Justice John Roberts in a concurrence on the restrictive side of the case. "Lower courts and regulated entities will now have to feel their way on a case-by-case basis."

The decision is a setback for environmentalists seeking to push tough federal regulations to the broadest possible swath of threatened wetlands.

"It is a defeat, absolutely," says Jim Murphy, wetlands counsel at the National Wildlife Federation. "It really places practical burdens on regulation and it also makes it more difficult for holistic watershed approaches to be used to really protect all the small waters that collectively have huge water quality implications."

Partial victory for landowners

The decision marks a partial victory for developers and other landowners who believe state and local government – not federal bureaucrats – should decide how local land is developed.

The opinion relates to two cases from Michigan that were consolidated for oral argument on Feb. 21. The cases are Carabell v. US Army Corps of Engineers, and Rapanos v. United States.

In both cases, federal regulators refused to permit the development projects to go forward on lands they said were restricted wetlands. The would-be developers challenged the federal government's assertion of authority over their land.

The government claimed jurisdiction under the Clean Water Act. Lawyers for the developers argued that the wording of the Clean Water Act only extends federal jurisdiction to "navigable waters" used in interstate trade. The Supreme Court has since extended that jurisdiction to adjacent wetlands, but the high court has never identified the outer boundary of federal authority under the Clean Water Act.

It also failed to do so in Monday's decision.

Specifically at issue in the Rapanos case was whether rainwater runoff occasionally flowing off the proposed development site was enough of a connection to federal navigable waters to trigger US government control over the development site.

In the Carabell case, the proposed development site was behind a berm. Thus, there was no runoff from the site.

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.

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.

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