Divided Supreme Court Upholds Federal Protections for Wetlands

A divided Supreme Court on Monday upheld the broad power of federal environmental regulators to protect most wetlands from development, even in areas that are dry much of the year.

The decision split the justices three ways and left uncertainty about the reach of the Clean Water Act. But it was a setback for private property advocates who hoped the more conservative court would sharply cut back protections for wetlands.

The case was the first environmental dispute before the court since John G. Roberts Jr. became chief justice, and it highlighted the conservative-liberal divide.

Taking a middle position, Justice Anthony M. Kennedy wrote the pivotal opinion, which appears to provide continued federal control over most wetlands.

At stake were an estimated 300 million acres of sometimes-swampy ground that includes half of Alaska and an area as large as California in the lower 48 states. Since the 1970s, the Army Corps of Engineers has said the owners of this land may not fill or drain it without a permit.

Last year, the court voted to take up a property rights challenge to how the federal government was enforcing the Clean Water Act, which was passed to protect “navigable waters.”

John Rapanos, a Michigan developer, was sued and fined by the federal government after he had filled in wetlands on three farm fields about 20 miles from Lake Huron. After a heavy rain, water from the fields flowed into a drainage ditch, and from there to a tiny stream into the lake.

Rapanos and his lawyers maintained that although the law allowed federal authorities to exert environmental control over navigable rivers, bays and lakes, they could not extend it to inland wetlands, such as those on his fields.

Six years ago, the court cut back the government’s authority over ponds and isolated wetlands that had no connection to rivers or the sea. In that 5-4 ruling, the justices -- including Kennedy -- said Congress had spoken of protecting the navigable waters of the United States from pollution, and there was no way that pollution from an isolated pond would pollute rivers, bays or lakes.

That decision set the stage for the Rapanos case.

Roberts and Justice Samuel A. Alito Jr., both new to the court in the last year, agreed with Rapanos. The two justices, along with Clarence Thomas, joined an opinion by Justice Antonin Scalia that said only wetlands connected to a steadily flowing stream were protected.

The opinion would have stripped away federal protection from most wetlands that are miles inland and nearly all of those in the West, since many stream beds there are dry most of the year.

But Kennedy, a native of Sacramento, balked and wrote a separate opinion that essentially upheld the broad reach of the current law. He cited the Los Angeles River and other streams in the West that send “torrents thundering” downstream, but only for short periods of the year.

Kennedy said Scalia’s opinion was “unduly dismissive” of the importance of wetlands and was “inconsistent with the text, structure and purpose” of the Clean Water Act. The measure was passed a few years after an oil slick on the Cuyahoga River in Cleveland caught fire in 1969, an embarrassment that focused the nation’s attention on polluted water.

Afterward, Congress sought to clean up the “waters of the United States” by giving federal regulators broad authority to stop pollution at its source. A few years later, the Army Corps of Engineers said wetlands helped to filter pollution from water and lessen flooding.

Until Monday, federal regulators, including those in the Bush administration, took the view that wetlands fell under the Clean Water Act if a single drop of water could flow from them to the sea -- the so-called hydrological connection.

Farmers and developers, including many in California, chafed at this thinking because it gave federal regulators control over low-lying acres that were wet for only part of the year.

They looked to the Rapanos case for relief.

But in previous rulings, a federal judge and a U.S. appeals court had upheld the Rapanos fine based on the hydrological connection test.

In his opinion, Kennedy said he disagreed with the test. Instead, he would require government regulators to show that filling a wetland would have a “significant effect” on the quality of the downstream waters. He noted that filling a wetland with dirt or sand usually would result in silt flowing downstream.

Kennedy’s decision, combined with the opinion of the four conservative justices, meant there were five votes to send the Rapanos case back to the lower courts. There a judge will decide whether Rapanos’ fields were indeed protected wetlands, with Kennedy’s opinion as a guide.

In his opinion, Kennedy said that he expected the federal government would prevail in the Rapanos case under his view because there was evidence that filling the wetlands had an effect on the quality of the water downstream. If so, Rapanos will have to pay millions of dollars in fines.

In the courtroom Monday, Kennedy also described his view of the law as being closer to the court’s four-member liberal faction, which said it would have upheld without question the broad reach of the Clean Water Act.

Justice John Paul Stevens, writing for the court’s liberal wing, predicted Monday’s decision would result in little change. “Justice Kennedy’s ‘significant nexus’ test will probably not do much to diminish the number of wetlands covered by the act in the long run,” he said.

The court’s 4-1-4 split, however, left activists on both sides of the issue a bit unsure of the future.

Several environmentalists expressed relief.

“Today, five justices of the Supreme Court wrote or joined opinions that support broad protection of rivers, streams and wetlands,” said Doug Kendall, executive director of Community Rights Counsel.

The National Resources Defense Council said it was pleased the court “rejected an attempt by the court’s conservative wing to dramatically roll back” a key environmental measure. But it also said the outcome “muddies the water” because it would force more legal battles over which wetlands were protected.

The Pacific Legal Foundation, which represented Rapanos, said it was pleased the court had “rejected unlimited federal control” of wetlands.

“The court has repudiated overreaching by the federal government,” said Reed Hopper, a lawyer for the Sacramento-based property rights group. “It is not the role of the federal government to micromanage every pond, puddle and ditch in our country.”

On Monday, Roberts issued a short statement faulting the Army Corps of Engineers for taking an “essentially limitless” view of its authority.

Because the high court was so divided, judges “will now have to feel their way on a case-by-case basis,” he said.

Instead, he urged the corps to adopt new regulations that clarified the rules for protecting wetlands.

As an appeals court judge, Roberts once joked about the “hapless toad” who was the subject of an endangered species dispute.

He questioned whether the federal government had the authority to prevent development in a dry canyon near San Diego simply because the endangered toad lived there.

Meanwhile, Stevens, the leader of court’s liberal faction, faulted the conservatives for judicial activism. In 1972, Congress passed a law to protect the “waters of the United States,” and since then, the executive branch and the courts have upheld the measure.

Scalia’s opinion “disregards the deference it owes the executive, the congressional acquiescence to the executive’s position ... and its own obligation to interpret laws rather than to make them,” Stevens wrote.