Muddled ruling on wetlands leaves nation with big mess

June 26, 2006|By FEDERICO CHEEVER

Grasping both the silliness and tragedy of the U.S. Supreme Court's ruling last week about clean water in Rapanos vs. United States requires some imagination:

Imagine you have nine family members and all are home for a holiday. The old washing machine springs a leak. Four family members try to find the leak and patch it up. Four other family members stand around and complain that it wasn't a good washing machine when you bought it in 1972 and that it wasn't fixed properly in 1977. The ninth member of the family can't make up his mind whether he is going to whine or help.

While this is exasperating in the laundry room or kitchen, it is unacceptable in the highest court in the nation.

The 1972 Clean Water Act is one of our primary national mechanisms for preserving the environment. As Congress put it when it passed the law, its purpose is to "restore and maintain the chemical, physical and biological integrity of the nation's waters."

For more than three decades, it has done a very good job of keeping the nation's waters clean. While it may seem undignified to liken the Clean Water Act to a washing machine, it is useful to help us remember that the law does something that needs to be done - protecting our essential waters and wetlands.

One of the problems with the law always has been defining "where the waters end." The law charges the Army Corps of Engineers with responsibility for issuing permits for discharges of dredge and fill material (dirt from construction) into the nation's waters.

In 1977, the corps' regulations defined those waters to include wetlands and intermittent streams. Engineers generally understand that water flows downhill. They understand that if you want to protect the quality of the nation's waters, you have to protect the quality of the wet places from which they rise. These basic points seem to escape judges with surprising frequency.

In 1989, John Rapanos wanted to develop land he owned in Michigan. Mr. Rapanos' land met the long-established corps' definition of "wetland." The corps informed Mr. Rapanos that he would have to get a permit under the Clean Water Act to destroy his wetlands.

Initially, Mr. Rapanos and the corps fought about a legitimate legal issue: whether, under the corps' regulations and the Supreme Court's previous decisions, there was a sufficient "hydrological connection" between the wetlands owned by Mr. Rapanos and a navigable body of water. This was the leak in the washing machine: a modest problem that required attention.

The U.S. District Court in Michigan ruled for the corps, holding that Mr. Rapanos had broken the law by failing to get a permit to fill his lands. The 6th Circuit Court of Appeals agreed. The Supreme Court decided to review the case.

The silly part: The Supreme Court dealt with this relatively modest issue of regulatory jurisdiction Tuesday by issuing five opinions totaling 104 pages. It seemed more like open-mike night at the judges' cafM-i than a Supreme Court ruling.

The "plurality" opinion - signed by Justices John G. Roberts Jr., Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. - demonstrated very little interest in Mr. Rapanos' problem. The justices complained about the Clean Water Act, the corps' regulations interpreting it and the corps itself.

In dissent, four justices - John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer - tried to plug the leak by affirming the lower courts and providing a reasoned basis for extending jurisdiction to Mr. Rapanos' land.

Justice Anthony M. Kennedy dithered in a lengthy concurrence that sided with the plurality and agreed with the dissent on most points. Chief Justice Roberts wrote a separate brief opinion that the corps was somehow responsible for the court's incomprehensible offering. Justice Breyer added another brief opinion urging the corps to write new regulations to resolve the mess.

The tragedy: In issuing its opinions, the Supreme Court ignored its obligation to interpret the law to provide intelligible rules that the corps and the rest of us can live by.

Mr. Rapanos will suffer. His case has been remanded to lower courts (that have already ruled against him) for reconsideration under new incomprehensible standards.

The corps will suffer. It will be swamped by litigation based on creative readings of the court's five opinions. The new regulations Justice Breyer demands will be almost impossible to write.

The nation will suffer because waters and wetlands will go unprotected as courts, agencies and the rest of us try to sort out the mess the Supreme Court has made.

Federico Cheever is a law professor and director of the Environmental and Natural Resources Program at the University of Denver's Sturm College of Law. His e-mail is fcheever@law.du.edu.

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