Community Rights Counsel Community Rights Counsel Community Rights Counsel Community Rights Counsel

About CRC

Legal Resources

Community Rights Report Newsletter

Support Us

Newsroom

Redefining Federalism

Warming Law Blog


Community Rights Counsel
1301 Connecticut Avenue, NW, Suite 502
Washington, DC 20036
Phone: 202-296-6889
Fax: 202-296-6895


CRC In The News

 

Justices wade into Clean Water Act
High court sets some limits on federal control of wetlands

 

San Francisco Chronicle
June 20, 2006

Bob Egelko, Chronicle Staff Writer

 

The U.S. Supreme Court, in its first major environmental ruling under Chief Justice John Roberts, set some general limits Monday on the federal government's power to prevent landowners from polluting thousands of marshes, drainage ditches and other wetlands.

But the court's ruling also left the regulatory picture as murky as it was before.

The court's most conservative justices, including Roberts and fellow newcomer Samuel Alito, came up a vote short of a majority that would have severely weakened federal authority to protect wetlands. The moderate-to-liberal bloc likewise failed to muster five votes to uphold the government's broad assertion of authority to prevent the polluting or filling of small and seasonal waterways.

In the middle was Justice Anthony Kennedy, whose opinion -- joined by no other justice -- now becomes the law of the land, the standard for regulating 100 million acres of wetlands.

Kennedy said only wetlands that have a "significant nexus'' to navigable waters, such as rivers and lakes, fall within federal authority. That means, he said, that the government can protect wetlands if polluted water from a ditch or pond would flow into the larger waterway, or if the wetlands protect a river or lake by providing a filter against pollutants or a buffer against floods.

Kennedy said his new standard would be more limited than the Army Corps of Engineers' claim of authority to regulate all wetlands with any connection to navigable waters. That means the government's power to enforce the Clean Water Act of 1972 will be weakened, to some degree.

But he declined to set precise limits -- saying only that federal regulators would lack authority over wetlands whose "effects on water quality are speculative or insubstantial'' -- and left definitions of those terms for future cases.

While advocates disagreed on its impact -- a property-rights lawyer and an environmentalist issued qualified declarations of victory, and other environmental groups expressed concern -- all sides agreed that the court's uncertain standard invites more lawsuits.

"Similar cases will certainly come back to this court,'' said Reed Hopper of the Pacific Legal Foundation in Sacramento, lawyer for a Michigan man whose attempt in the 1980s to fill wetlands for a future shopping mall was one of two cases decided Monday. "Congress, the agency (Army Corps of Engineers) or the court has got to give us a bright-line rule.''

"Unfortunately, this split decision will likely spur more litigation efforts by industry and polluters to try to strip away Clean Water Act protections,'' said Joan Mulhern, an attorney with Earthjustice, which represented the Sierra Club, the Natural Resources Defense Council and other environmental groups before the court.

Roberts himself, in a brief separate opinion, lamented the lack of a majority and said lower courts and property owners "will now have to feel their way on a case-by-case basis.''

The status of wetlands has long been a hotly disputed issue under the Clean Water Act, one of the nation's most important environmental laws, which allows federal agencies to prevent pollution of navigable waters.

The law failed to spell out the extent of the government's power over the countless ponds, marshes, drainage ditches, small streams and tributaries that impact larger waterways. While environmentalists pushed for greater protection -- citing, among other things, research indicating the degradation of Gulf Coast wetlands contributed to the devastation wrought by Hurricane Katrina -- private-property advocates fought back against what they saw as government intrusion.

The court ruled in 2001 that the federal government lacked authority over wetlands that were used by migratory birds but were isolated from rivers and lakes. Monday's ruling addressed a larger issue, the status of wetlands that flow into navigable waters through intermediate channels or form part of an overall system with larger waterways.

In the West, many of those wetlands are vernal pools or other seasonal waters that are dry much of the year but play important roles in pollution and flood control and wildlife habitat, according to federal regulators.

Monday's ruling involved two Michigan cases. One landowner, John Rapanos, filled 50 acres of wetlands with sand in 1989 so he could offer the property for sale to a developer. The land is 20 miles from Saginaw Bay but is linked to it by ditches and streams. Two other developers, June and Keith Carabell, were stopped by federal regulators from building a condominium complex on land that includes 16 acres of wetlands. A berm, or earthen mound that impedes water flow, separates the swampy acreage from a drainage ditch that leads to a creek and a lake.

Lower courts upheld federal regulation. In defending those rulings, the Bush administration was joined by environmentalists and by water agencies from 33 states, including California. They argued that states could not effectively protect their wetlands from pollution that may originate elsewhere.

But after Monday's ruling, California's Water Resources Control Board said the state may not be as affected as others by the lessening of federal regulation because California has its own strong water quality law.

The Supreme Court's decision, which requires lower courts to reconsider the cases, produced multiple opinions.

An opinion by Justice Antonin Scalia -- joined by Roberts, Alito and Justice Clarence Thomas -- argued that the Clean Water Act covered only "relatively permanent, standing or flowing bodies of water'' with surface connections to navigable waterways. Scalia said the Corps of Engineers, by claiming jurisdiction over intermittently flowing waters, was trying to regulate "transitory puddles'' and possibly exceeding the limits of the government's constitutional power to regulate interstate commerce.

Justice John Paul Stevens, joined by Justices David Souter, Ruth Bader Ginsburg and Charles Breyer, argued that the Corps of Engineers' broad claim of authority was supported by the experience of "regulations that have protected the quality of our water for decades,'' in keeping with the goal of the Clean Water Act.

Kennedy, writing for himself alone, said the other justices' opinions assigned the government either too little or too much power under the law. That stance put him in the unique position on the court of commanding a majority for his view: that the government could regulate wetlands up to a certain point, but go no further.

Timothy Dowling, executive director of the Community Rights Council, which favors environmental regulation, said the ruling was less than a total victory but "it's safe to say that we're relieved.'' Kennedy's opinion, he said, "is flexible enough that it provides hope for continued regulation of these important streams and rivers.''

Other environmentalists took a gloomier view. Unless Congress or the Bush administration acts to clarify the law, "the impact on our nation's waters will be devastating,'' said attorney Jim Murphy of the National Wildlife Federation.

Hopper, Rapanos' lawyer, said he would also welcome congressional action but called the ruling a victory for property rights. The court, he said, had rejected the government's argument that "they could regulate anywhere water flows.''

The cases are Rapanos vs. U.S., 04-1034, and Carabell vs. U.S. Army Corps of Engineers, 04-1384.


 

 





Back to CRC Home

If you have questions or comments about this website or
Community Rights Counsel email us!

2005 Community Rights Counsel. All rights reserved.