Wednesday, February 1st, 2023
Wednesday, February 1st, 2023

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Supreme Court mulls wetland case decision

Decision unlikely before April

By Tim Spielman Associate Editor

Washington — It could be several months before a decision is
rendered by the Supreme Court, but conservationists nationwide are
hoping for results from two wetlands cases recently heard by the
high court that won’t compromise the protection of potentially
thousands of wetland acres.

Some groups have said unfavorable rulings in the cases of United
States v. Rapanos and Carabell v. United States – both of which
stand to test the bounds of the Clean Water Act – could put in
jeopardy half the remaining wetlands of the continental United

“I’d say at the conservative end, 50 percent,” said Dr. Scott
Yaich, director of conservation programs for Ducks Unlimited. “I’ve
also heard 80 to 90 percent in some areas.”

The cases, both of which have roots in Michigan, also will be
one of the first tests of new Chief Justice John Roberts and
Justice Samuel Alito.

The cases were heard in February by the Supreme Court in what
amounted to about an 80-minute presentation by both conservation
groups and developers, according to Yaich. He expected the court to
make a decision “no earlier than April,” and more likely, later
this summer.

The justices are seeking to clarify whether building projects
can be barred from property adjacent to tributaries that dump into
waterways protected by the 1972 Clean Water Act or are separated
from protected waters by a man-made berm. The decision could have
implications on several wetlands cases pending in various

Justice David Souter, questioning the attorney for property
owner John Rapanos, suggested that limiting the law’s reach would
allow an “end-run around the regulations” by polluters.

“All you have to do is dump the pollutant upstream far enough
away from the watershed and you get away scot-free,” Souther told
attorney M. Reed Hopper.

But Roberts and Justice Antonin Scalia questioned whether an
overly broad interpretation of the law might give regulators
jurisdiction over storm drains and ditches.

“To call that waters of the United States seems to be
extravagant,” Scalia said.

The Clean Water Act requires landowners to receive a permit from
the U.S. Army Corps of Engineers before filling in waterways. The
Corps generally has received wide latitude to prevent wetland
degradations from regulations and court rulings.

However, a court ruling in 2001 was considered a setback for
wetlands protection and resulted in the estimated loss of 14,000 to
20,000 acres, according to environmental groups. In that case, the
Supreme Court excluded “isolated” wetlands that don’t cross state
lines and have no hydrological connection to navigable waters. The
court sided with Chicago-area suburbs that wished to build landfill
atop abandoned gravel pits that had filled with water and were
being used by migratory birds.

Yaich called the decision in that case, which involved the Solid
Waste Agency of Northern Cook County, “a very different situation”
than that facing the Supreme Court at present.

While conservation groups hope wetlands are protected and the
Clean Water Act clarified, its possible interpretation could even
further muddy the Act’s purpose, according to Terry Riley, vice
president of policy for the Theodore Roosevelt Conservation

“It’s possible it (the court’s decision) could be like SWANCC –
modify something and make things more unclear,” he said.

It’s also possible the court could reach a split verdict, as the
cases have some distinguishing characteristics.

The cases involve Macomb County wetlands adjacent not to
navigable waters themselves, but to their wetlands. The woodlot
owned by Keith Carabell is a mile away from Lake St. Clair, while
the properties controlled by Rapanos are about 20 miles from a
river that empties into Lake Huron. Carabell has hoped to build
condominiums, while Rapanos wanted to build a shopping mall.

Riley said the decision could come down to whether there’s a
direct link from the wetland to the waters, or possibly the court
could decide how far up a tributary warrants protection. But making
a ruling that includes actual distance is unlikely.

“I don’t know if the Supreme Court is in the business of …
creating more law,” Riley said.

Riley said losses in wetland protection could be “disastrous.”
The Swampbuster provision provides some assurances that farmland is
protected from drainage (farmers would lose federal aid by
violating wetlands protections), but, “We do feel (losing the court
cases) would have a major impact on wetlands,” Riley said.

Eric Schaeffer, director of the Environmental Integrity Project,
said actions by the recently realigned Supreme Court will have a
major bearing on wetlands protection in the future.

“Developers are going to keep attacking the Clean Water Act, and
the public should understand that the new Supreme Court has the
power to determine whether our wetlands live or die,” Schaeffer

The 2005 EIP noted the United States has lost more than half of
its native wetland since European settlement began. Wetland losses
averaged 300,000 acres a year in the late 1970s and early 1980s,
according to the U.S. Fish and Wildlife Service, but slowed to
about 60,000 a year in the late 1990s, in part due to the Clean
Water Act and voluntary incentives for conservation.

The Associated Press contributed to this story.

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