U.S. Has Broad Power on Wetlands, Court Rules

In a victory for environmentalists, the Supreme Court ruled unanimously Wednesday that the federal government has broad power to control development on the millions of acres of swamps, mud flats and marshlands that make up the nation’s wetlands.

The justices, ruling in a Michigan case, held that under the federal Clean Water Act, developers must acquire permits from the U.S. Army Corps of Engineers to fill freshwater wetlands adjacent to rivers, lakes and other waters.

California, along with 19 other states and about 20 environmental groups, had joined the Reagan Administration in urging the court to uphold far-ranging federal authority over about 100 million acres of wetlands in the country.

State Atty. Gen. John K. Van de Kamp and other state officials, in a “friend of the court” brief, said such lands help keep streams pure, provide flood and erosion control, feed and shelter wildlife and offer recreational opportunities.

But in the wake of expanded development, they said, wetlands are being developed at the rate of 450,000 acres annually. Over the years, California has lost more than 90% of its original wetlands, according to the state. Although many coastal states have enacted laws to protect coastal wetlands from unrestricted development, they still rely heavily on the U.S. government to protect inland wetlands, which make up the vast majority of such lands nationally.

Environmentalists hailed Wednesday’s decision. “This decision very strongly reaffirms that the Clean Water Act was designed to protect the wetlands and to do so on a very broad scale,” said Jerry Jackson, an attorney representing the National Wildlife Federation and other environmental groups.

The decision was a setback for several business and developer groups that had asked the court to narrowly define the scope of federal authority over wetlands. The U.S. Chamber of Commerce had called the government’s expansive interpretation of the Clean Water Act “a classic example of federal regulatory overreaching,” saying many development plans were being ruined by the corps’ assertion of authority even when they posed no threat to water quality.

“The permit process is a very costly, time-consuming and aggravating process,” said Kevin Heron, an attorney for the Pacific Legal Foundation, which supported developers. But he said the court had left open the question of whether federal control extended to wetlands not adjacent to other waters.

The case began in 1976 when a Michigan developer, Riverside Bayview Homes, obtained local approval to begin adding dirt fill to an area near Lake St. Clair in preparation for an 80-acre residential housing project. The federal government brought suit to stop the developer from filling the property because it failed to acquire a permit from the corps.

The corps said that under the Clean Water Act its permission was required for filling fresh-water wetlands “inundated or saturated” by ground or surface water often enough to support vegetation.

A federal district court upheld the government, ordering the developer to remove the fill. But a federal appeals panel in Cincinnati reversed, saying federal permits should be required only for wetlands with “frequent flooding” directly from nearby waters.

In its appeal (U.S. vs. Riverside Bayview Homes, 84-701), the Justice Department said the appellate court’s narrow interpretation of the law conflicted with Congress’ intention to impose broad regulatory authority over wetlands.

The court, in an opinion by Justice Byron R. White, upheld the government, saying that the corps’ interpretation of the act was consistent with Congress’ intent.