Kennedy's view respects the West

Wetlands ruling reins in Army Corps

Published June 21, 2006 at midnight

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It was no slam dunk for property owners. But on Monday the U.S. Supreme Court at long last concluded that the Clean Water Act does not give the government a blank check to declare private property "wetlands" just because the parcel in question happens to be located in the same time zone of a river or stream.

A sharply divided court (4-1-4) ruled that before the U.S. Army Corps of Engineers defines landlocked property to be wetlands, it needs to show that a "significant nexus" exists between the land and the water sources it presumably services.

The Clean Water Act prohibits the discharge of pollutants in the "navigable waters of the United States." The law also regulates wetlands, which not only provide wildlife habitat, but also perform essential filtering and drainage functions.

By a broad definition employed by federal regulators - the source of the lawsuits that were decided Monday - 100 million acres of U.S. territory may be considered wetlands, or half again the area of Colorado. Even so, only half of that is under water for 14 days or more a year, which is one environmentally defensible way to define wetlands.

Monday's ruling could close a troubling gap in the law, which now declares off limits millions of acres of land that is often neither navigable, environmentally sensitive, nor wet. By heeding the court's instructions, the Corps could protect water quality without trampling property rights.

The two cases originated in Michigan, where separate property owners sought to develop vacant land that the Corps considered wetlands. One parcel was more than 10 miles from the nearest stream; the other was separated from a ditch by an impenetrable berm.

In both cases, the Corps denied development permits.

Justices Scalia, Thomas, Roberts and Alito tried to restrict the Clean Water Act so that only property adjacent and contiguous to streams could be considered wetlands - which is, they argued, what the plain language of the law suggests.

That definition is too narrow, Justice Anthony Kennedy stated in a separate concurrence. We agree. The plurality's formulation could remove federal protection from a host of seasonal streams and dry creek beds that are essential to the water network in the parched West. Instead, Kennedy joined the four in ordering the cases back to lower courts. But he also provided the "significant nexus" instruction to the Corps.

In another concurrence, Chief Justice John Roberts noted that three years ago, after losing a wetlands case, the Bush administration tried to limit the scope of regulation. The process "went nowhere. . . . \[Instead], the Corps chose to adhere to its essentially boundless view of the scope of its power."

So the Corps needs to get moving, and prevent the pointless harassment of landowners, along with a raft of fresh lawsuits at taxpayer expense that seem destined to fail.

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