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By
David G. Savage
Los Angeles Times
June 19, 2006
WASHINGTON
— A divided Supreme Court today upheld the broad power of
federal environmental regulators to protect most wetlands from
development, even in areas that are dry much of the year.
The decision by five justices dashed the hopes of private
property advocates who believed that the more conservative
court was ready to sharply cut back the reach of the Clean
Water Act.
At issue was an estimated 300 million acres of sometimes
swampy ground that includes half of Alaska and an area as
large in California. Since the 1970s, the Army Corps of
Engineers has said the owners of this land may not fill it or
drain it without a permit.
Last year, the court voted to take up a property rights
challenge to the broad reach of federal authority. It was
brought on behalf of John Rapanos, a Michigan developer who
was fined heavily after he had filled in wetlands on three
farm fields that were about 20 miles from Lake Huron. After a
heavy rain, water from these fields flowed into a drainage
ditch, and from there to a tiny stream.
Rapanos acknowledged that federal authorities could prevent
the pollution of "navigable" rivers, bays and lakes,
but he maintained that they could not exercise control over
inland wetlands like those on his fields.
Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito
Jr., both new to the court in the past year, agreed with
Rapanos and joined an opinion by Justice Antonin Scalia. They
argued that only wetlands that were connected to steadily
flowing streams came under federal protection, an opinion that
Justice Clarence Thomas also accepted.
This opinion would have stripped away federal protection from
most wetlands that are well inland and nearly all those in the
West because their streambeds are dry most of the year.
Justice Anthony M. Kennedy, a native of Sacramento, balked and
wrote a separate opinion that essentially upheld the broad
reach of the law. He cited the Los Angeles River and other
streams in the West that send "torrents thundering"
downstream, but only for short periods of the year.
Kennedy said Scalia's opinion was "unduly
dismissive" of the importance of wetlands and was
"inconsistent with the text, structure and purpose"
of the Clean Water Act. This measure was passed a few years
after an oil slick on the Cuyahoga River in Cleveland caught
fire in 1969, an embarrassment that focused the nation's
attention on polluted water.
Afterward, Congress sought to clean up the "waters of the
United States" by giving federal regulators broad
authority to stop pollution at its source. A few years later,
the Army Corps of Engineers said wetlands helped filter
pollution from water and lessen the impact of flooding.
Kennedy said federal authority did not extend to isolated
wetlands whose filling would have no effect on
"downstream water quality." However, if
environmental regulators could show that dredging or filling a
wetland could "significantly affect" the waters
downstream, they could protect it from development.
Until today, federal regulators — including the Bush
administration — said wetlands were under federal
jurisdiction if a single drop of water could flow from them to
the sea. Lower federal courts for Michigan upheld the
government's fine of Rapanos based on that theory.
Kennedy voted with his conservative colleagues to overturn the
trial court's initial ruling and give the court an opportunity
to reconsider the issue. As guidance, he also said there
appeared to be evidence that filling the fields on Rapanos'
land had an effect on downstream waters.
He described his view of the law as being closer to the
interpretation of the court's four liberals — who said they
would have upheld without question the broad reach of the
Clean Water Act — than that of the four conservatives.
The court's 4-1-4 split left activists on both sides of the
issue a bit unsure about the future.
Several environmentalists expressed relief. "Today, five
justices of the Supreme Court wrote or joined opinions that
support broad protection of rivers, streams and
wetlands," said Doug Kendall, executive director of the
Community Rights Counsel.
The National Resources Defense Council said it was pleased the
court "rejected an attempt by the court's conservative
wing to dramatically roll back" a key environmental
measure. But it also said the outcome "muddies the
water" because it will force more legal battles over
which wetlands are protected.
The Pacific Legal Foundation, which represented Rapanos, said
it was pleased the court had "rejected unlimited federal
control" of wetlands.
"It is not the role of the federal government to
micromanage every pond, puddle and ditch in our country,"
said Reed Hopper, a lawyer for the foundation.
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