Quick Facts: The U.S. Supreme Court’s latest decision regarding the environment, Rapanos v. United States, focused on wetlands protection. The case presented the Court with an opportunity to clarify what many believe to be ambiguous wording in the federal Clean Water Act and to draw clear lines as to what wetlands are protected under federal law. The decision that the Court handed down could have made it easier for environmentalists to preserve wetlands; it also could have made it much harder. Thus far, the Rapanos decision has been most noted for the lack of clarity provided.
The United States Supreme Court recently issued a decision in a case entitled Rapanos v. United States. The case was about wetlands protection. This article briefly delves into the details of the case, and summarizes the Court’s decision. While the article is a bit more technical than most of Real Mama, Inc.’s articles, we thought our readers might be interested in this legal issue. For, while this case might not directly affect most families, it represents the Supreme Court’s, and the Country’s, ever-present struggle between development and the environment. And for those of us who value wetlands for their ecological, educational or aesthetic purposes, Rapanos is the latest official word on the topic.
The case heard by the Supreme Court was actually two cases with the same issue at hand and rolled into one. In one case, allegations of federal Clean Water Act (the federal law that governs the environmental protection of our Nation’s water resources) violations were brought against a developer who filled the wetland on his property without a permit, and in the other case, the needed federal permits to fill a wetland area were denied. Generally, the case heard by the Court found land development pitted against environmental protection. Land developers sought to fill wetlands on their property and grade the areas to build a condominium and a shopping center. Federal regulators claimed that the prospective building sites were wetlands that are protected by the federal Clean Water Act, while the developers claimed that the areas were not the type of wetlands protected by the Clean Water Act.
Progress vs. Protection
While the legal definition is seemingly always being debated, the United States Environmental Protection Agency defines a wetland as an area where saturation with water is the dominant characteristic determining the nature of soil development as well as the type of plant life and animal communities living within.
Wetlands provide visible evidence of environmental splendor and environmental protection at work. Wetlands supply unique vegetation, wildlife habitat, and flood prevention functions.
As Americans, we enjoy the luxuries and conveniences of a highly developed nation. But the comfortable homes and nearby grocery stores often come at an almost incalculable price: a cost to our natural resources. The legislature, the courts, and, to some degree, all of us struggle to find the proper balance between development and environmental protection. And while various shades of gray exist between the two camps, generally one camp feels that environmental regulations over-protect at the expense of development or “progress,” standing in the way of economic progress and private property rights, while the other feels that short-sighted development forever ruins crucially important environmental resources and that a loss in wetland protection would significantly reduce the flood-prevention functions that wetlands provide while also reducing crucial wildlife habitat.
The Clean Water Act is 34 years old and covers all “navigable waters.” Over the years, our courts have interpreted the law’s reach to extend past the actual navigable water and, in turn, to all adjacent wetland areas and tributaries that feed into the navigable water. The courts, at times, have even extended the Act’s reach to small isolated ponds and isolated wetland areas – regardless of their actual hydrological connection to a truly navigable water.
The Rapanos case raised the question of whether the wetlands at issue held a sufficient enough connection to navigable water to be regulated by the Clean Water Act. More specifically, the question raised was whether Mr. Rapanos’ land that was 20 miles away from true navigable water (and thus deemed an “isolated” wetland) would fall under the law’s clean water protection. As the case went before the United States Supreme Court, it held particular importance because a ruling by the Court would not only affect the development of the condominium and shopping center at issue in the case, but many other wetlands, lakes, ponds, swamps and similar “isolated” waters. A recent CNN internet article reported that over 100 million wetland acres would be impacted by the Court’s decision.
Ambiguous Outcome
The case presented the Court with an opportunity to draw clear lines (where fuzzy lines previously existed) between protected wetlands and non-protected wetlands. Unfortunately, the Court’s ruling did not provide the much sought clarity. For those following the “political” make-up of the Court’s justices, you won’t find it surprising that the four conservative justices sided with a narrow reach of the law (and, thus, less protection over wetlands), while the four more liberal justices favored an expansive reach of the Clean Water Act (and, thus, increased protection over wetlands). In the end, it was Justice Kennedy who cast the deciding vote. In a nutshell, his opinion allowed that Federal Regulators may have over-extended their reach by including the developers’ property under their regulatory jurisdiction, finding that the wetlands in question were not covered by the Clean Water Act. In addition to his opinion, Justice Kennedy set forth a new test to help determine which wetlands would be covered by the Clean Water Act. That test provided that wetlands with a “significant nexus” to navigable waterways and which “significantly affect the chemical, physical and biological integrity” of nearby navigable waters can be federally regulated.
Legal commentators, environmentalists and developers seem to all agree that this recent Supreme Court ruling does little to provide real clarity to the wording of the Clean Water Act that many already deem to be ambiguous, and instead provides another vague, subjective test for determining federal jurisdiction over wetlands. For now, it is uncertain how this ruling will govern similar cases that will be heard in the lower courts or how similar situations will be handled by regulators when future permits are requested. The more likely result of this case will be seen in the increased efforts of advocacy groups on both sides to push lawmakers to pass legislation that will clearly describe the extent to which wetlands are covered under the Clean Water Act.
It is worth noting that one piece of pending legislation with the goal of clarifying the wording of the Clean Water Act is the Clean Water Authority Restoration Act of 2005 (CWARA). This bill has been referred to the Senate Committee on Environment and Public Works and Realmama.org will continue to monitor its progress.
