Divided Supreme Court upholds wetlands protections

WASHINGTON — A divided Supreme Court on Monday upheld the broad power of federal regulators to protect most wetlands from development, even 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 Roberts became chief justice, and it highlighted the conservative-liberal divide.

Taking a middle position, Justice Anthony 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 it 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."

The federal government sued and fined John Rapanos, a Michigan developer, after he had filled in wetlands on three farm fields about 20 miles from Lake Huron. After a heavy rain, water from the fields flowed into a drainage ditch, and from there, to a tiny stream into the lake.

Rapanos and his lawyers maintained that while the law allowed federal authorities to exert environmental control over navigable rivers, bays and lakes, they could not extend it to inland wetlands, such as those on his fields.

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 the rivers, bays or lakes.

That decision set the stage for the Rapanos case.

Roberts and Justice Samuel Alito, both new to the court in the past 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 are protected.

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

But Kennedy 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.

Kennedy said Scalia's opinion was "unduly dismissive" of the importance of wetlands and was "inconsistent with the text, structure and purpose" of the Clean Water Act.

Until Monday, federal regulators, including the Bush administration, took the view that wetlands fell under the Clean Water Act if a single drop of water could flow from them to the sea — the so-called "hydrological connection."

In his opinion, Kennedy said he disagreed with this test. Instead, he would require government regulators to show that filling a wetland would have a "significant effect" on the quality of the downstream waters.

Kennedy's opinion, combined with the opinion of the four conservative justices, meant there were five votes to send the Rapanos case back to the lower courts. There a judge will decide whether Rapanos' fields were indeed protected wetlands, with Kennedy's opinion as a guide.

In his opinion, Kennedy said that he expected the federal government would prevail in the Rapanos case under his view because there was evidence that filling the wetlands had an impact on the quality of the water downstream.

In the courtroom Monday, Kennedy also described his view of the law as being closer to the court's four-member liberal faction, which said it would have upheld without question the broad reach of the Clean Water Act.

Justice John Paul Stevens, writing for the court's liberal wing, predicted Monday's decision would result in little change.

"Justice Kennedy's 'significant nexus' test will probably not do much to diminish the number of wetlands covered by the act in the long run," he said.