In a rebuff to the Bush administration, the Supreme Court announced yesterday that it will decide how broadly the Clean Water Act can be interpreted to protect wetlands.

Interestingly, the Bush administration argued in a brief that the case should NOT be heard, and that lower court rulings allowing the government to make such decisions should be upheld, as it is a “core federal interest.”

The case will provide a first look into Justice Roberts’ thoughts on the matter; as a judge on the appellate court he commented in a dissent that he was skeptical of the government’s authority to protect habitat under the interstate commerce clause of the constitution (the same foundation in the current case).  His confirmation hearings did not provide additional insights into his opinions on this matter, which was the cause for alarm among environmentalists at his elevation to the court.

More after the fold…

Central to this case is the Clean Water Act’s provision that the federal government shall prevent pollution in “the waters of the United States.”  This was initially interpreted to mean the “navigable” waters of the nation, but a later 2001 case expanded it to include wetlands with a “significant nexus” between a wetland and an “adjacent” body of water.

In the 2001 case, an isolated farm pond with surrounding wetlands was determined to not be protected under federal law, even if used by migrating wildlife, but the exact meaning of the terms in quotes in the last paragraph were left undefined.  One could argue that virtually all bodies of water are connected hydrologically via groundwater and should therefore be protected, but the court does not appear to be moving in that direction.

The position of government scientists is that wetlands require protection in order to protect the wider ecosystem, including the bodies of water into which they drain.  The National Association of Home Builders, among others, believes this is a sweeping position that will severely hamper their ability to develop properties.  Subsequent lower court rulings have not resolved how “adjacent” to a body of water the wetlands must be in order to be protected.

As reported in today’s Washington Post, the specifics of the two cases are:

In the first case, Carabell v. U.S. Army Corps of Engineers , No. 04-1384, Michigan property owners were denied permission to build a condominium complex in Macomb County, Mich., outside Detroit. The Corps of Engineers said that, although the property is separated by a berm from a ditch that feeds water into Lake St. Clair, it is nonetheless “adjacent” to the ditch and thus to “waters of the United States.”

In the second of the cases, Rapanos v. United States , 04-1034, a Michigan man who wants to develop shopping centers faces steep civil and criminal penalties for filling in wetlands on three sites, despite repeated government prohibitions.

The case is scheduled to be heard in early 2006 with a decision expected by July.

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