CLEAN WATER ACT

Boston Globe - Supreme Court tackles wetland protection After fighting the federal government for more than 18 years, Keith Carabell is resigned to more uncertainty after the U.S. Supreme Court ordered another look at his plan to build condominiums in a wetland area. In a case so divisive it produced five separate opinions totaling more than 100 pages and no clear majority, the court ruled that the government can block development on hundreds of millions of acres of wetlands, even on land miles away from waterways, as long as regulators prove a significant connection to the waterways. The 5-4 decision sends Carabell and another Michigan developer's cases back to a federal appeals court -- with no end to the spat in sight. "I'm not sure I'll live to see the end of this," the 79-year-old accountant said. In his first major environmental case, Chief Justice John Roberts came up one vote short of dramatically limiting the scope of the landmark Clean Water Act. But at the same time, property rights advocates won a new test for when wetlands can be regulated. Moderate Justice Anthony M. Kennedy said there must be a "significant nexus" between the wetland and a navigable waterway. Neither environmentalists nor property rights activists had a clear-cut victory. "It muddied already muddy waters on this issue," said Jim Murphy, wetlands counsel with the National Wildlife Federation....
NY Times - Justices Divided on Protections Over Wetlands The Supreme Court on Monday came close to rolling back one of the country's fundamental environmental laws, issuing a fractured decision that, while likely to preserve vigorous federal enforcement of the law, the Clean Water Act, is also likely to lead to new regulatory battles, increased litigation by property owners and a push for new legislation. With four justices on one side arguing for a sharp restriction in the definition of wetlands that are subject to federal jurisdiction, and four justices on the other arguing for retaining the broad definition that the Army Corps of Engineers has used for decades, Justice Anthony M. Kennedy controlled the outcome in a solitary opinion. Justice Kennedy said that to come within federal protection under a proper interpretation of the Clean Water Act, a wetland needs to have a "significant nexus" to a body of water that is actually navigable. He then made clear, in his 30-page opinion, that whether such a relationship existed in any specific case was largely a technical and scientific judgment on which courts should defer to the federal regulators. The four parcels of land at issue in the case, all in Michigan, were likely to meet the definition, he said. Environmental advocacy groups reacted to the decision, which sends the cases back to an appeals court, as if they had dodged a bullet, which in many respects they had. An opinion for four justices, written by Justice Antonin Scalia, would have stripped protection from many areas that federal regulators have treated as wetlands under the 1972 law. Justice Scalia's opinion, joined by Chief Justice John G. Roberts Jr. and by Justices Clarence Thomas and Samuel A. Alito Jr., said the Army Corps of Engineers had stretched its authority under the Clean Water Act "beyond parody" by regulating land that contained nothing but storm sewers, drainage ditches and "dry arroyos in the middle of the desert."....
Wall Street Journal Editorial - Parsing the Waters The Supreme Court tiptoed up to the edge of a landmark property-rights ruling yesterday, but in the end it merely dipped a toe in the water without deciding whether to jump in or not. The vote in the case left little room for doubt about the reason for the Court's indecision -- his name is Justice Anthony Kennedy. The Court split, in effect, 4-1-4 in Rapanos v. U.S., which covered two separate cases concerning federal jurisdiction over "wetlands" under the Clean Water Act. Mr. Rapanos had filled a wetland that was essentially a drainage ditch without a permit back in 1989. Five years later, the government filed suit against him. Mr. Rapanos lost, and that decision was upheld by the Sixth Circuit Court of Appeals. The Supreme Court vacated that decision Monday and sent it back to the lower courts to try again. Justice Antonin Scalia, writing for four of the Justices, clearly would have gone farther in reining in the expansive interpretations of the Clean Water Act that have taken hold over the last three decades. Thanks to the Army Corps of Engineers, the definition of "navigable waters" can now include puddles and drainage ditches and has turned the law-abiding likes of Mr. Rapanos into wetlands desperadoes. In his own separate opinion, Justice Kennedy agreed to vacate the ruling but refused to go as far as the rest of the majority. The result is that the final outcome in both the Rapanos case and Carabell v. U.S., another drainage ditch fiasco also decided yesterday, remains in doubt. On remand, the lower courts could modify their reasoning but uphold their decisions. As Justice Scalia noted in his opinion, Justice Kennedy seemed to "tip a wink" at the government in his concurrence, "inviting it to try its same expansive reading again" as long as it cites Justice Kennedy's logic. Chief Justice John Roberts -- who, with Clarence Thomas and Samuel Alito, joined with Justice Scalia's opinion -- also wrote a concurrence in which he lamented that it was "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." As a result, he warned, "Lower courts and regulated entities will now have to feel their way on a case-by-case basis." In other words, welcome to the Kennedy Court....

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