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U.S. SUPREME COURT CONFUSINGLY REFINES DEFINITION OF FEDERALLY JURISDICTIONAL WETLANDS

By Carol W. LaGrasse

In a victorious ruling for private property rights, the United States Supreme Court on June 19 sent the high-profile wetland cases of Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers back to the lower court for further refinement. The Supreme Court's split decision voided rulings that had supported the federal government's expansive definition of its power under the Clean Water Act, sending the cases back to the lower courts to determine whether the federal government may have over extended its authority by exerting jurisdiction over wetland areas with remote connections to "navigable waters."

However, the 4 - l - 4 decision left the side of the court that stands for constitutional private property rights one vote short of clearly limiting the scope of the Clean Water Act. Justice Anthony M. Kennedy became the proverbial swing judge, with his middle-of-the-road opinion that denied property owners clear relief from federal regulation of wetlands on or near ditches or minor waterways that are not directly navigable. His separate concurrence stated that wetlands must "significantly affect the chemical, physical, and biological integrity" of nearby navigable waters to come under the Clear Water Act.

Justice Antonin Scalia's opinion expressed the views of Chief Justice John Roberts, Justice Clarence Thomas and Justice Samuel Alito. He wrote, "In the past three decades, the Corps and the Environmental Protection Agency (EPA) have interpreted their jurisdiction over 'the waters of the United States' to cover 270-to-300 million acres of swampy lands in the United States—including half of Alaska and an area the size of California in the lower 48 states."

He pointed out that the Corps of Engineers misrepresented the term "waters of the United States." He stated, "In applying the definition to 'ephemeral streams,' 'wet meadows,' storm sewers and culverts, 'directional sheet flow during storm events,' man-made drainage ditches, and dry arroyos in the middle of the desert, the Corps has stretched the term 'waters of the United States' beyond parody," he wrote.

Justice Scalia concluded that the definition of "waters of the United States in the Clean Water Act refers to "water as found in 'streams,' 'oceans,' 'rivers,' 'lakes,' and 'bodies' of water 'forming geographical features.'" He wrote, "All of these terms connote continuously present, fixed bodies of water, as opposed to ordinarily dry channels through which water occasionally or intermittently flows."

In reiterating the previous Supreme Court's interpretation of "adjacent" wetlands, he rejected the meaning of the United States Court of Appeals for the Sixth Circuit in the Rapanos case "holding that there was federal jurisdiction over the wetlands at all three sites because 'there were hydrological connections between all three sites and corresponding adjacent tributaries of navigable waters.'" Reaffirming the SWANCC (Solid Waste Authority of Northern Cook County v. U.S. Army Corps of Engineers, 2001) decision, Judge Scalia held that "…only those wetlands with a continuous surface connection to bodies that are 'waters of the United States' in their own right, so that there is no clear demarcation between 'waters' and wetlands, are 'adjacent to' such waters and covered by the Act."

The top court voided rulings against Keith Carabell, who hopes to develop condominiums on wetlands about a mile from St. Clair in Macomb County, Michigan, and John Rapanos, who had filled wetlands on property near Midland, Michigan. John Rapanos' problems began when he filled property that included 54 acres of land with sometimes-saturated soil conditions. The nearest body of navigable water was 11 to 20 miles away. Mr. Rapanos faced 62 months in prison and hundreds of thousands of dollars in criminal and civil fines for filling three wetlands connected by various ditches and drains to a creek and rivers, and finally to Lake Huron. The Carabell property has a wetland about one mile from Lake St. Clair. A 4-foot-wide berm largely or entirely impermeable to water blocks drainage from the wetland, though it may permit occasional overflow to a ditch that empties into another ditch or a drain, which connects to a Creek, which empties into Lake St. Clair.

With four judges believing that the Corps should keep on with its current level of jurisdiction, four judges of the opinion that only wetlands adjacent to "relatively permanent, standing, or flowing bodies of water" should be jurisdictional, and one judge failing to agree with the group that found in favor of the property owners while agreeing with them about sending the cases back to the lower court to determine where the Corps should draw the line regarding the wetlands' link to navigable waters, the future of wetland regulation in the U.S. is still up in the air. Landowners are still in limbo, their private property rights subject to the whim of federal bureaucrats.

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