SCOTUS on Wetlands Protections

This is a complicated subject, and it appears obvious to me that Scalia and Kennedy don't really understand the limits to which they are placing on what is considered a wetland.

A divided Supreme Court on Monday upheld the broad power of federal environmental regulators to protect most wetlands from development, even in areas that are dry much of the year.

The decision split the justices three ways and left uncertainty about the reach of the Clean Water Act. But it was a setback for private property advocates who hoped the more conservative court would sharply cut back protections for wetlands.

The case was the first environmental dispute before the court since John G. Roberts Jr. became chief justice, and it highlighted the conservative-liberal divide.

Taking a middle position, Justice Anthony M. Kennedy wrote the pivotal opinion, which appears to provide continued federal control over most wetlands.

At stake were an estimated 300 million acres of sometimes-swampy ground that includes half of Alaska and an area as large as California in the lower 48 states. Since the 1970s, the Army Corps of Engineers has said the owners of this land may not fill or drain it without a permit.

Last year, the court voted to take up a property rights challenge to how the federal government was enforcing the Clean Water Act, which was passed to protect "navigable waters."

Rapanos' argument is a far to narrow reading of the act. That pretty much falls out in the results.

Six years ago, the court cut back the government's authority over ponds and isolated wetlands that had no connection to rivers or the sea. In that 5-4 ruling, the justices — including Kennedy — said Congress had spoken of protecting the navigable waters of the United States from pollution, and there was no way that pollution from an isolated pond would pollute rivers, bays or lakes.

That decision set the stage for the Rapanos case.

Roberts and Justice Samuel A. Alito Jr., both new to the court in the last year, agreed with Rapanos. The two justices, along with Clarence Thomas, joined an opinion by Justice Antonin Scalia that said only wetlands connected to a steadily flowing stream were protected.

The opinion would have stripped away federal protection from most wetlands that are miles inland and nearly all of those in the West, since many stream beds there are dry most of the year.

But Kennedy, a native of Sacramento, balked and wrote a separate opinion that essentially upheld the broad reach of the current law. He cited the Los Angeles River and other streams in the West that send "torrents thundering" downstream, but only for short periods of the year.

The problem with Scalia's argument is that he dismisses the fact that waters, in season, may need outlets, and when those outlets are filled in, the water goes places that cause extra damage to properties and major silting to waterways. On the other hand Kennedy's argument misses the point that some places have water on them only in a relatively minor extent for short periods of the year. I know of certain people's houses that would be considered to be in a wetland by Kennedy's opinion. And that house is on the side of a hill.

This article at the Volokh Conspiracy does a better job at discussing the findings than the LATimes article.

In the near term, Justice Kennedy’s concurring opinion creates more work for federal regulators. His concurrence presumes that the U.S. Army Corps of Engineers will draft and promulgate additional regulations that identify what creates a “significant nexus” between wetlands and waters. In subsequent enforcement actions and challenges to federal jurisdiction, federal officials will also have to make a greater showing that a given parcel has the requisite ecological attributes to meet this test. But without a dramatic shift in the approach adopted by most federal courts, this is a burden the federal government will meet more often than not, particularly since most federal courts will readily defer to the Corps’ technical expertise.

It is also worth noting that the Court’s actual opinions show unreasonably apocalyptic were some characterizations of the stakes in these cases (e.g. that the Everglades could be at stake as Scientific American suggested). The arguments advanced by petitioner Rapanos were so sweeping and ambitious that they commanded not a single vote on the Court. Even Justice Scalia’s plurality explicitly rejected so narrow a reading of federal jurisdiction. Considerations of stare decisis have particular force in the statutory context. Thus, even were a majority of justices sympathetic to such an interpretation of the Act, it was foreclosed by the Court’s prior interpretations.

There is also an article there on the relation to Federalism in this finding.

SCOTUSblog has related entries on topic as well.