Friday, February 3rd, 2023
Friday, February 3rd, 2023

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Court decision raises wetlands quandaries

By Tim Spielman Associate Editor

Washington — Late last month, conservation leaders and
developers alike struggled to determine the meaning of a Supreme
Court decision regarding federal wetlands protection.

Promoted as a possible “landmark” case involving two development
disputes in Michigan, and the U.S. Army Corps of Engineers’
interpretation of the federal Clean Water Act, the decision in
effect returns the cases to the federal appeals court from which
they came, leaving some wondering if anything really has changed.
While a 5-4 vote said federal regulators may have misinterpreted
the Clean Water Act, in a separate 5-4 vote, the court refused to
block the government from imposing restrictions on remote
wetlands.

According to a Ducks Unlimited press statement: “A 5-4 U.S.
Supreme Court wetlands decision … further confused decades of
federal protection of wetlands throughout the country under the
Clean Water Act. The decision is disappointing, because hunters and
anglers understand that wetlands are the most productive fish and
wildlife habitat in the world.”

But in the same decision, the court ruled the government may
block development on millions of acres of wetlands, even on land
miles away from waterways, as long as regulators prove a connection
to the waterways.

In the ruling, a five-justice majority agreed that the Corps of
Engineers, the lead federal agency on wetlands regulation, had
exceeded its authority when it denied two Michigan developers
permits to build on wetlands. John Rapanos was charged with
illegally placing fill material in protected wetlands at several
sites in Bay, Midland, and Saginaw counties for retail development.
The other case, (Keith) Carabell v. United States, involved the
filling of wetlands in Macomb County for condo development.

In both cases, the Sixth Circuit Court of Appeals upheld
headwater wetlands protections.

While the court said the Corps may have exceeded its authority,
it didn’t offer a clear indication of where the agency should’ve
drawn the line, regarding the wetlands’ links to navigable
waters.

At issue in both cases, along with a wealth of other cases
pending nationwide, is what protection is afforded wetlands by the
Clean Water Act.

“For more than three decades of the Clean Water Act (enacted in
1972), wetlands ‘adjacent’ to navigable waters could only be
dredged or filled if a developer had a permit from the (Corps).
Today’s decision fails to provide clarity for wetlands protection
under the Clean Water Act,” the DU release states.

“The justices themselves were far apart in their opinions
concerning the case. Four justices (John Stevens, David Souter,
Ruth Bader Ginsburg, and Stephen Breyer) wanted to maintain
protection of these wetlands. Four justices (Samuel Alito, Clarence
Thomas, Antonin Scalia, and Chief Justice John Roberts) favored
reducing protection for these wetlands unless they were directly
connected to continuously flowing waters like rivers and lakes,”
according to DU. “Justice Anthony Kennedy didn’t agree with either
group, but did favor sending the cases back to the lower court for
further consideration of the connections between the wetlands at
issue and adjacent waters.”

The net effect of the most important Clean Water Act case to
reach the court in recent years was thus neither the outright
rollback of federal wetlands regulation that property rights
advocates have long sought, nor the reaffirmation of the Clean
Water Act that environmental groups had desired.

“The opinions (in the decision) were at both extremes,” said Dr.
Scott Yaich, director of conservation programs for DU. The lower
court will examine the cases again and “see what connections there
are between wetlands and navigable waters.”

Terry Riley, vice president of policy for the Theodore Roosevelt
Conservation Partnership, said although the outcome wasn’t
necessarily a victory for conservation, it could lead to changes –
for the better – in wetlands protection.

“The decision could’ve been worse,” he said a day after the June
19 ruling. “It puts us back where we were, actually.”

Riley said he was pleased the Supreme Court didn’t, in rendering
its decision, define the Clean Water Act in a way that created law
that said wetlands had to be within a certain distance of a
navigable water, for example.

“I hope with more scientific analysis, we can get a better
compilation of information – to show the case that (scientists)
know, that connections (sometimes in the form of groundwater) are
there,” Yaich said.

What’s next? Riley says there are a number of possibilities.

States could pass their own wetlands laws, to better define
what’s protected. The administration could offer a proposal to
better define what wetlands are protected.

“Or, we could let it bang around in the courts until Congress
comes up with a better definition,” Riley said.

John Devney, Delta Waterfowl’s senior vice president, believes
it’s up to Congress to clarify wetlands protection.

“What we really need is for Congress to clean up the law,” he
said. “We’re clearly in a situation now where courts are looking at
(the federal law) with a fairly narrow interpretation.”

While federal wetlands protection might be an adequate safeguard
nationwide, ideally states need their own rules in place, Riley
said.

Yaich said few states have adequate wetland protection laws in
place. In fact, there are probably more states that have laws
forbidding state agencies from being more stringent than the
federal government with wetlands protection, he said.

The Associated Press contributed to this report.

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