US Supreme Court unclear about wetlands

US wetlands still undefined

Published: Saturday 04 July 2015

on june 19, 2006, the us Supreme Court (sc) came out with a fractured ruling in two cases related to the definition of wetland under the Clean Water Act, 1972. The court came up with an ambiguous verdict on the broader issues while sending the cases back to the lower courts for further deliberation "in the light of sc's ruling".

The issue was brought to the sc by two Michigan property owners -- John Rapanos and June Carabell -- who wanted to start construction work on their privately-owned lands, deemed as wetlands. Rapanos started construction on the land without seeking permit from the us Army Corps of Engineers and was issued a notice. Similarly, Carabell had applied for a permit to fill up around 280 hectares of heavily forested wetland and start construction, but the Corps denied him permission. In both cases, the lower courts upheld the authority of Corps to protect these waters from unregulated pollution and destruction.

In the sc, four out of the nine judges ruled that the federal act had been interpreted in an overly broad manner when it required the removal of a wetland to be approved by the Corps, as in the case of Michigan developers. On the other hand, four other judges ruled that the government could block development on hundreds of millions of acres of wetlands or even on land miles away from waterways, as long as regulators prove a connection to the waterways.

Standing midway was justice Anthony Kennedy, who said the Corps had overstepped its bounds in the two Michigan cases but also agreed with the others that it was important to protect the water quality but not every pothole or ditch could be protected. He called for a case-by-case approach to determine jurisdiction and also suggested determining a "significant nexus" between the wetland and the navigable waterway.

I n such a 4-1-4 situation, it was the concurring opinion of Kennedy that defined the case. But experts claim unless the act was amended or the Corps redefined the wetlands, the lower courts only had Kennedy's vague opinions to guide them. They felt the judgement left the fate of the country's 100 millions acres of wetland engulfed in a cloud of uncertainty.

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