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Special report: Vanishing wetlands

Justices open wetlands wars

The high court splits three ways, leaving wetlands battles to be decided "case by case."

By CRAIG PITTMAN and MATTHEW WAITE
Published June 20, 2006

In a decision that could affect millions of acres of Florida swamps and marshes, a sharply divided U.S. Supreme Court ruled Monday that the U.S. Army Corps of Engineers may have overstepped its authority in protecting wetlands from development.

But the court's split decision left unsettled how federal regulators should interpret the requirements of the 34-year-old Clean Water Act, which legal experts said virtually guarantees further court battles.

"Talk about murky waters,'' said Joan Mulhern of the environmental law firm Earthjustice.

The 5-4 ruling, which delighted home builders and property rights groups, overturned lower court rulings that said the corps acted properly in blocking a shopping mall and condominiums in Michigan that would have destroyed wetlands with only tenuous connections to waterways.

But Chief Justice John Roberts, in his first environmental case, came up one vote short in an effort to declare the property owners victorious. Instead the justices sent the case back to the lower courts for further proceedings -- where Justice Anthony Kennedy, the swing vote, said the corps may yet prevail.

The justices were so fractured that the main opinion by Justice Antonin Scalia, who compared the corps to a despot, won the votes of only three other justices. Roberts said the result was so confusing that everyone "will now have to feel their way on a case-by-case basis.''

The court's more conservative members - Scalia, Roberts, Samuel Alito and Clarence Thomas- wanted a ruling that cleared the way for development in wetlands not directly connected to rivers, lakes and streams flowing year-round.

The court's more liberal members - John Paul Stevens, David Souter, Ruth Bader Ginsberg and Stephen Breyer - said that such a ruling would gut three decades of environmental protection.

Kennedy, in an opinion legal experts said will be the one lower courts will follow, said Scalia misread the Clean Water Act but the liberals went too far too. Instead he proposed the corps develop standards spelling out which wetlands deserve protection - a move the corps has attempted before, abandoning it in the face of objections from all sides.

The corps could prevail in both cases, Kennedy suggested, by showing "a significant nexus'' between saving the wetlands and protecting the waterways.

Corps officials were unsure of their next step. "All I can say right now is that our attorneys and staff ... are reviewing the decision,'' Mark Sudol, the head of the corps' regulatory division in Washington, said in an e-mail to the St. Petersburg Times.

Environmental groups fretted that the corps' staff, perpetually overworked, will take the ruling as a signal to give in more often to developers.

"The fear is that, practically, because it makes it more difficult ... the result is going to be a lot less wetlands are going to be protected,'' said Jim Murphy, a lawyer for the National Wildlife Federation.

However, Stetson College of Law professor Royal Gardner, a former corps attorney, said that "for the Clean Water Act and the federal wetland permit program, perhaps a quote from Monty Python and the Holy Grail is more appropriate: 'I'm not dead yet.' "

Kennedy's test gives the corps some guidance on how to keep the program alive, Gardner said, and Congress could pass a pair of bills clarifying that all wetlands should be protected - even though those bills have been stuck in committee for more than a year.

In the meantime, Gardner said, it is "likely that developers will exploit the uncertainty by filling wetlands.''

The 1972 Clean Water Act says wetlands are worth saving because they control flooding, filter pollution, recharge drinking water supplies and provide wildlife habitat. Federal jurisdiction is supposed to be confined to wetlands near or connected to navigable waterways.

Developers who want to destroy wetlands must get permission from the corps, which rarely says no. From 1999 to 2003, it approved more than 12,000 permits to wipe out wetlands in Florida and rejected only one.

However, getting a permit can be time-consuming, leading to expensive delays in construction. And sometimes developers do not agree that what the corps is requiring a permit to destroy is really a wetland.

Monday's ruling "was a signal that the practical side of real estate development is going to finally get a hearing,'' said Ron Weaver, a Tampa real estate lawyer who is an official with the National Association of Industrial and Office Parks.

The cases involved two Michigan developments.

John Rapanos was convicted of violating the Clean Water Act because he refused to get a permit before filling in wetlands to sell to a mall developer. His wetlands are 11 miles from the Kawkawlin River but connected through a man-made drain and a creek.

The second case involves a condominium project that would have destroyed 15 acres of wetlands. A ditch beside the property connects to a drain that flows into a creek feeding Lake St. Clair.

The 5-4 ruling said Rapanos and the condominium developers could be correct that their wetlands are too far from navigable waterways to need permits.

Rapanos' attorney, Reed Hopper of the Pacific Legal Foundation, said the ruling shows that "it's not enough that there be any hydrological connection with a waterway, but that connection must be significant and it must be substantial.''

The decision echoes one the high court made in 2001 in a Chicago-area case that said the corps should not have tried to regulate isolated wetlands by claiming they were used by migratory birds.

The Bush administration then proposed rules cutting back on the corps' jurisdiction. More than 135,000 comments poured in, mostly opposed, so the corps dropped the proposal.

A study by the Florida Department of Environmental Protection found then that one-third of the wetlands in the Florida Panhandle would be unprotected under those proposed rules.

Florida has about 11-million acres of wetlands.

Information from the Associated Press was used in this report.

Inside

The court will consider another appeal to reinstate a ban on "partial-birth abortion." 6A

[Last modified December 14, 2006, 18:26:38]