Supreme Court curtails enforcement of Clean Water Act

The 5-4 decision doesn't define limits of U.S. authority to protect wetlands

Posted: June 19, 2006

The Supreme Court on Monday said new limits could be set regarding the federal government's power to enforce the 34-year-old Clean Water Act, but a set of opinions handed down by the justices did little to define what those limits might be.

The splintered decision was the clearest sign yet that the court's long-standing ideological divisions have not disappeared with the addition of two conservative justices. It also underscored that, perhaps more than ever, forming a majority in significant cases depends on winning the vote of a single justice - moderate Anthony Kennedy.

In Monday's ruling, a five-justice majority agreed that the Army Corps of Engineers, the lead federal agency on wetlands regulation, had exceeded its authority when it denied two Michigan developers permits to build on wetlands. The court said the Corps had gone beyond the Clean Water Act by making landowners obtain permits to dump rocks and dirt not only in marshes directly next to lakes and rivers but also in areas linked to larger bodies of water through a network of ditches and drains.

But there was no clear majority as to where the Corps should have drawn the line, with a four-justice plurality made up of Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito arguing for an across-the-board reduction in the Corps' regulatory role but Kennedy rejecting that view and calling for a case-by-case approach.

The net effect of the most important Clean Water Act case to reach the court in recent years was thus neither the outright rollback of federal wetlands regulation that property-rights advocates have long sought nor the reaffirmation of the Clean Water Act that environmental organizations had desired.

Instead, unless Congress amends the law or federal regulators change their rules, the likely outcome is more litigation, with property owners, U.S. agencies and federal judges trying to figure out how to satisfy the standards sketched in Kennedy's solo opinion.

"The practical effect is that some bright-line rules that have been applied for decades haven't been thrown out . . . but have had a significant cloud set over them by Justice Kennedy," said Richard Lazarus, a professor of environmental law at Georgetown University.

Little effect in Wisconsin

The court's decision will have little to no impact in Wisconsin because of legislation passed in 2001, after the court scaled back the Corps' authority in an Illinois case.

The law, unique among the 50 states, protects wetlands no longer covered by the Clean Water Act.

A Wisconsin developer and a construction company, however, view the case as a big victory for themselves and property owners across the country

Gerke Construction has a case pending before the 7th Circuit Court of Appeals concerning the filling of a wetland in Tomah.

The company is fighting a fine leveled after it began work for developer Pete Thorson. Similar to the argument in one of the cases addressed Monday, Gerke says the Army Corps of Engineers overstepped its authority in regulating a piece of property far from any navigable waterway.

Thorson sought to develop the 5.8-acre parcel before the Wisconsin law took effect in 2001.

"My hands have been tied for five years," Thorson said. "The question is whether I will be able to get my full economic use of the property like my neighbors."

Thorson said the court's ruling should give some guidance to the Corps and the lower courts.

"We truly feel it's a great win for private property owners today," Thorson said. "We feel it's truly a cost to the economy and a personal property owner when the Corps can take such dramatic measure against property rights."

'A serious rollback'

Andrew Hanson, an attorney with Midwest Environmental Advocates, said the ruling was "a serious rollback from wetlands protection in this country."

Even the intermittent streams and wetlands at the heart of the case provide vital pollution filtering and environmental benefits to larger rivers and lakes, he said.

"It is, maybe, the worst environmental decision that has come out in recent years, and I don't think it's hyperbole to say that," he said.

In other developments on Monday:

• The Supreme Court said it would consider a second Bush administration appeal that seeks to reinstate a federal ban on what opponents call partial-birth abortion. Justices had already said they would decide this fall whether the law is unconstitutional.

• The high court ruled that statements made by crime victims to 911 operators or police during emergencies can be used in court even if those victims do not testify at trial. In a pair of cases, the justices gave a nod to the difficulties of prosecuting domestic violence cases.

Tom Held of the Journal Sentinel staff contributed to this report.