Supreme Court tackles wetland protection

TRAVERSE CITY, Mich. – After fighting the federal government for more than 18 years, Keith Carabell is resigned to more uncertainty after the U.S. Supreme Court U.S. Supreme Court ordered another look at his plan to build condominiums in a wetland area.

The 5-4 decision sends Carabell and another Michigan developer‘s cases back to a federal appeals court — with no end to the spat in sight.

In his first major environmental case, Chief Justice John Roberts came up one vote short of dramatically limiting the scope of the landmark Clean Water Act. But at the same time, property rights advocates won a new test for when wetlands can be regulated. Moderate Justice Anthony M. Kennedy said there must be a “significant nexus” between the wetland and a navigable waterway.

“It muddied already muddy waters on this issue,” said Jim Murphy, wetlands counsel with the National Wildlife Federation.

Roberts and the court‘s other three conservatives complained in an opinion that virtually any land in America would be covered under the government‘s interpretation of the law.

“It‘s really a bizarre situation,” said Richard Lazarus, a Georgetown University law professor.

Roberts, Justice Antonin Scalia , Justice Clarence Thomas and new Justice Samuel Alito were in the conservative bloc. Siding with liberal Justice John Paul Stevens were Justices David H. Souter, Ruth Bader Ginsberg and Stephen Breyer .

The justices themselves appeared troubled by their inability to agree on a clear standard for wetland protection. Roberts said the result was confusing and that “lower courts and regulated entities will now have to feel their way on a case-by-case basis.”

Several justices urged the U.S. Army Corps of Engineers, the agency that determines whether to allow development of federally regulated wetlands, to clarify its regulations.

Congress also may get involved. Bills pending in the House and Senate favor an expansive view of federal authority over wetlands.

Rapanos, 70, of Midland, ran afoul of regulators by attempting to develop three parcels they said contained wetlands.

He filled in a portion of one property with sand to build a shopping center, defying cease-and-desist orders and insisting it had no wetlands. The nearest navigable waterway is a Lake Huron tributary river about 20 miles away, but state and federal officials said adjacent ditches provided a direct surface link.

Carabell wanted to build condominiums on a 19-acre parcel in Macomb County, north of Detroit. He obtained a state permit but the Army Corps balked, saying the property had wetlands within the Lake St. Clair drainage system even though they were separated from a tributary ditch by a man-made earthen berm.


Associated Press Writer Gina Holland in Washington contributed to this report.


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By JOHN FLESHER, Associated Press

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