Out of Control Policy Blog

SCOTUS To Decide Landmark Wetlands Regulation Cases

The Supreme Court has annouced that it will rule on three cases that will ultimately decide the limits of wetlands regulation under the Clean Water Act:

    The Supreme Court announced Tuesday that it will decide how extensively government can regulate the nation's wetlands, a key source of contention among environmentalists and property owners.

    Property owners in two cases the court agreed to hear argue that government regulators have interpreted the 1972 Clean Water Act too broadly and exceeded their power to regulate interstate commerce, because the wetlands in dispute are miles from any waters able to support recreation or shipping.

    In accepting the cases, the court ruled against the Bush administration, which had said in a brief that "core federal interests" were at stake and urged the court to let stand lower-court rulings that upheld the federal government's authority.

    . . . .

    At the center of the debate is the Clean Water Act, which gave the federal government authority to block pollution in "the waters of the United States." At the time, this jurisdiction was premised on Congress' power to regulate interstate commerce on the country's "navigable" waters.

    The government views wetlands as a part of complex ecosystems that must be kept clean to preserve the quality of the larger bodies of water they ultimately feed. Property owners, supported by such organizations as the National Association of Home Builders, say this is a sweeping definition that rubs out state and local land-use authority -- and adds to the cost of housing.

These decisions likely won't generate the same intensity of public discussion as the June Kelo vs. New London ruling on eminent domain, but they're no less important: wetlands regulation is a HUGE issue in urban development, as well as the property rights movement. For some perspective:

    With more than 100 million acres of wetlands in the contiguous United States, a total as big as California, the stakes are high, the justices were told.

    The outcome could have implications for government authority in regulating construction in obviously environmentally sensitive areas, such as Hurricane Katrina-decimated parts of Louisiana and Mississippi, and even land that is not adjacent to water.

    The Army Corps of Engineers regulates work on wetlands, which are home to many plants and animals.

    "They define wetlands so broadly that even dry desert areas of Arizona are being called wetlands," said Paul Kamenar, a lawyer with the Washington Legal Foundation, one of the conservative groups that called on the court to intervene.

The Las Vegas Review-Journal has already taken a stand for property rights:

    The common denominator in the three cases that will be considered next year is wetlands protection. According to an Agriculture Department study, farms and ranches lost some 263,000 acres to wetlands designations between 1997 and 2003. Rather than limit that protection to navigable waterways that connect major bodies of water and support shipping -- the intent of the 1972 Clean Water Act -- state regulators and the Army Corps of Engineers have slapped red tape on seemingly every depression that puddles during a rainstorm.

    . . . .

    Just what business does the Army Corps of Engineers, an arm of the federal government, have regulating small plots of land in Michigan? The Constitution allows the federal government to regulate interstate commerce. Did the Founding Fathers want this power used to stop the construction of shopping centers in areas that would support them? Environmentalists and the federal government would say, "yes."

    Hopefully, Chief Justice Roberts can build a majority that will hand down a resounding "no."

And the Mackinac Center weighs in on the news as well:

    The federal government has traditionally been able to regulate the nation's navigable waters under the Constitution's commerce clause. The landowners in both Michigan cases claim that the area alleged to be a wetland is too distant from navigable waters to be connected to them, while the federal government argues that if the water from the property could theoretically reach a navigable water, federal jurisdiction is proper.

    [Mackinac Center Senior Legal Analyst Patrick] Wright said: "The federal government's claim of jurisdiction on grounds that water from an otherwise isolated water source might somehow still reach a navigable water is a sort of 'one-drop rule.' It's too expansive. It gives the federal government almost unlimited jurisdiction over land-use regulation, an area that has traditionally been governed by the states. The Founding Fathers did not intend for the U.S. Constitution's commerce clause to allow for such sweeping federal regulation."

We'll definitely be keeping an eye on these cases as they progress. BTW, the three cases are Rapanos v. United States, Carabell v. Army Corps of Engineers, and S.D. Warren Co. v. ME Board of Environmental Protection.

Leonard Gilroy is Director of Government Reform


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