Pioneer Editorial: Court strikes balance in wetlands rule
At first blush, the U.S. Supreme Court's ruling Monday on how the federal government regulates wetlands may be confusing and even further cloud that role. But after some study, maybe it is the proper decision as America's wetlands are complex and deserve careful consideration, on a case-by-case basis, if necessary.
The court itself couldn't find solid consensus, as it voted 5-4 to essentially uphold provisions of the 1972 Clean Water Act which regulates development activity on wetlands. That's good, because a 5-4 vote the other way would have gutted the 30-year-old law and provided a serious blow to our nation's efforts to preserve a disappearing base of wetlands.
But the ruling also served to narrow the circumstances under which federal regulation should apply, as Justice Anthony M. Kennedy said, that there must be a "significant nexus" between the wetland and a navigable waterway. Federal agencies have interpreted the act's jurisdiction of "the waters of the United States" to virtually anything wet, even if only wet during a part of the year. That's wrong, says the Supreme Court, as Chief Justice John Roberts wrote that the U.S. Army Corps of Engineers, instead of taking the court's direction in previous rulings "providing guidance meriting deference under our generous standards, the Corps chose to adhere to its essentially boundless view of the scope of its power. The upshot today is another defeat for the agency."
The new direction allows that federal regulations can apply to land adjacent to tributaries, including that are not filled with water all year. But in the specific case the justices ruled on Monday, that should not include a proposed mall development in Michigan wetlands which are some 20 miles away from a river that empties into Lake Huron.
Both property rights activists and environmentalists find something they like in the ruling, which sends the case back to a federal appeals court for further review. So that can't be all bad.
Minnesota faces problems now with the law, as a connected body of water listed as "impaired" disallows any development -- regardless how far away as long as it is in the same water body. Thus, as the Mississippi River's Lake Pepin is "impaired," Northern Township cannot install its own sewage treatment facility involving Lake Bemidji.
Writes Roberts: "It is unfortunate that no opinion commands a majority of the court on precisely how to read Congress' limits on the reach of the Clean Water Act. Lower courts and regulated entities will now have to feel their way on a case-by-case basis."
But as each waterway and wetland is unique, perhaps that is the best way. While our overall goal is to keep our waters clean and unpolluted, that shouldn't mean properly regulated development can't occur.