On soggy ground

June 20, 2006

From a glass-half-full perspective, the Supreme Court's refusal yesterday to remove from federal Clean Water Act protections wetlands and other soggy places that don't meet the strict definition of navigable waters must be celebrated.

Such a ruling would have undermined the cleanup compact in which the federal government is a partner and been devastating to the ecology and economy of the Chesapeake Bay region.

But the split decision that sent challenges to the Clean Water Act by two Michigan property owners back to lower courts to reconsider sends a mixed signal at best to federal and state regulators, as well as to developers and the courts.

Justice Anthony M. Kennedy straddled a divide between four colleagues wanting to uphold three decades of regulatory practice by the Army Corps of Engineers and four other justices seeking a ruling that would open land for development unless it is right next to a waterway.

Justice Kennedy's split-the-difference finding affirms the importance of protecting wetlands to meeting the environmental goals of the Clean Water Act. But he said that in the absence of more specific regulations, the corps must establish a "significant" connection between wetlands and navigable waters "on a case-by-case basis."

In the cases at issue, the property owners wanted to fill wetlands, ranging from one mile to 20 miles from Lake St. Claire, so the land could be developed for condos and a shopping center. Both owners argued their property failed to meet the definition of navigable waters that the Clean Water Act was enacted in 1972 to protect. Chief Justice John G. Roberts Jr. agreed, arguing during a hearing earlier this year that there has to be a point where the law's jurisdiction stops or "every drop of water" on any field or farm in America would be subject to federal regulation. But judging from what scientists have learned over the past three decades, greater sensitivity to wetlands seems justified, not less.

Congress could easily clarify the definition, but this Republican-led Congress is far more likely to repeal the Clean Water Act than strengthen it. Instead, it may well be up to the states to lead the way.

In the Chesapeake region, most of the states, including Maryland, have their own regulations to protect the 1.7 million acres of wetlands that drain into the bay. The high court may have just ensured, though, that those regulations have to be a lot tougher.

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