Justices Curb Wetland Protection

The Supreme Court’s conservative majority Tuesday cut back on federal protection for the environment, ruling that the Clean Water Act does not reach the isolated ponds and wetlands that are home to millions of migratory birds.

In a 5-4 ruling, the court said that federal officials can protect waterways that are navigable or marshes that drain into navigable waters--but not landlocked ponds, wetlands or mud flats.

The decision overturns the so-called migratory bird rule under which the Army Corps of Engineers prevented landowners from filling or polluting wetlands.

The small glacial ponds that dot the Upper Midwest are the principal breeding grounds for North American waterfowl. Until now, federal officials have had the power to prevent these “prairie potholes” from being drained or destroyed.

Environmentalists condemned the ruling and said that it left vulnerable the vital habitats of ducks, geese, herons and other birds.

“The decision today puts in jeopardy perhaps a fifth of the water bodies in the United States, ranging from parts of the Everglades to the country’s most important breeding grounds for ducks,” said Tim Searchinger, senior attorney for Environmental Defense in Washington.

Farmers, ranchers and developers welcomed Tuesday’s ruling as an important victory against overzealous federal regulation.

In briefs filed with the court, they complained bitterly about the “migratory bird rule” and said that federal authorities have used it as a pretext for regulating private land.

A leader of the California Cattlemen’s Assn. said that federal officials had cited the pools of winter rainwater on ranchland in the Central Valley as a basis for insisting that owners not plant certain crops or graze their cattle.

“They just use this to try to control private property,” said John Braley, executive vice president of the cattlemen’s group in Sacramento.

“This particular rule swept up a lot of people, and it is very expensive to fight back,” said Anne M. Hayes, a lawyer for the Pacific Legal Foundation in Sacramento. “The government was essentially saying they could regulate someone’s backyard pond.”

While the high court’s ruling prohibits federal officials from restricting landowners’ use of these ponds and wetland areas, state officials can assume that regulatory role if they choose to do so.

California, for example, strictly regulates wetlands along the coast through the California Coastal Commission. The effect of Tuesday’s ruling on the state’s remaining wetlands is unclear.

According to the Environmental Protection Agency, more than 90% of the state’s natural wetlands were gone by the end of the 1980s.

Salt marshes near the ocean and wetlands along the rivers--the two main types of wetland in California--would remain protected under the Clean Water Act because they flow into navigable waters.

John McCaull of the National Audubon Society’s California office said that the ruling appears to leave unprotected “vernal pools,” the low-lying land that fills with water seasonally and attracts wildlife. He estimated that from 10,000 to 20,000 acres of land in the state could be affected, including vernal pools in San Diego County and the Merced grasslands.

Southern California and other arid Southwestern areas could be affected dramatically, with one-fourth to half of its water bodies potentially losing federal protection, said Mark Durham, acting regulatory branch chief for the Corps’ Los Angeles District.

Depending on how the ruling is applied, California waters that could lose federal protection include such well-known spots as the Salton Sea, Owens Lake and Mono Lake, because they do not flow into the Colorado River or the Pacific Ocean, Durham said.

It is possible that federal authorities could rely on the Endangered Species Act to prevent development or pollution in some of these areas. Tuesday’s ruling narrowed the Clean Water Act, but it did not restrict the power of federal wildlife officials to protect the habitats of threatened animals or plants.

State regulators also have the power to step up their enforcement, said an official of the state water board.

“California is in a unique situation, since our state water quality law is in some ways broader in scope than the federal law,” said Craig Wilson, counsel for the California water quality agency. “We have tended not to get involved where the Corps [of Engineers] was involved. But the state can choose to regulate, and we would take a look if there was a threatened impact on water quality.”

But in other parts of the nation, state officials have been wary of confronting industry and developers over protecting wetlands, environmentalists said.

At the Supreme Court, the case was not debated as a clash between environmental protection and private property rights but rather as federal versus state power.

Speaking for the court, Chief Justice William H. Rehnquist said that he and his four conservative colleagues were unwilling to “permit federal encroachment upon . . . the states’ traditional and primary power over land and water use.”

He hinted strongly that the court would have declared the Clean Water Act unconstitutional if Congress had clearly given federal officials the power to regulate wetlands and other waters that did not flow to the sea.

But Congress did not say just how far the environmental protection reached, so Rehnquist instead struck down the “migratory bird” regulation on the grounds that it went beyond the authority given to the Corps of Engineers.

If the conservative court was looking for a reason to limit federal regulatory power, a landfill dispute from the Chicago area surely gave them a good case.

Some 23 municipalities in Cook County had banded together and bought an abandoned gravel pit. They spent $30 million to prepare the site as a landfill for baled trash.

But in 1991, the Corps of Engineers announced that, because migratory birds had been spotted in some of the tract’s seasonal ponds, the landfill project could not go forward.

Rehnquist reversed that decision (Solid Waste Agency of Northern Cook County vs. Army Corps of Engineers, 99-1178). He was joined by Justices Sandra Day O’Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas.

The dissenters, led by Justice John Paul Stevens, accused the conservatives of adopting a “miserly construction” of the environmental law and one that is historically outdated.

In the 1970s, Congress was concerned about “preventing environmental degradation,” not protecting the navigability of streams, Stevens said.

The famous fire that erupted on Cleveland’s Cuyahoga River in 1969 focused attention on the problem of polluted water. It led directly to passage of the first Clean Water Act three years later, Stevens said, and it set a broad, national goal of stopping water pollution.

“Our nation’s waters no longer burn. Today, however, the court takes an unfortunate step that needlessly weakens our principal safeguard against toxic water,” he added. His dissent was joined by Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

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Times staff writer Marla Cone in Los Angeles and Deborah Schoch in Orange County contributed to this story.