Court favors builders in wetlands dispute

The U.S. Supreme Court voted 5-4 yesterday in favor of two Michigan property owners who were stopped from building a shopping mall and condos on wetlands they own when the U.S. Army Corps of Engineers invoked Clean Water Act provisions against them.

The decision, in a setback for environmentalists, could make it easier for real estate development near waterways.

In the first major environmental ruling for Chief Justice John G. Roberts Jr., the Supreme Court sent the case back to lower courts to decide whether the wetlands had a “nexus” with nearby Lake St. Clair that would give them Clean Water Act protection.

The regulators apparently misinterpreted the Clean Water Act by forbidding the property owners to backfill wetlands only marginally connected to the lake, the court said.

The court’s opinion said navigable waters protected from backfill under the Clean Water Act are streams, oceans, rivers and lakes “forming geographic features.”

However, in a separate 5-4 vote, the court refused to block the government from restricting access on wetlands near major bodies of water.

The ruling leaves the decision on which wetlands are connected to waterways up to administrative agencies and lower federal courts.

Chief Justice Roberts said uncertainties in the ruling about what constitutes a “navigable waterway” mean “lower courts and regulated entities will now have to feel their way on a case-by-case basis.”

The votes split along ideological lines with conservatives preferring to clear the way for land development, while the liberals wanted to give the Army Corps of Engineers broad authority to limit activity that could trample wetlands.

The conservatives were led by Justice Antonin Scalia, who wrote the opinion that voided lower court rulings against developers Keith Carabell and John Rapanos. They wanted to fill in the wetlands in Macomb County, Mich., so Mr. Carabell could build condos about a mile from the lake. Mr. Rapanos planned to build a shopping mall about 20 miles from the lake.

“In applying the definition to ‘ephemeral streams,’ ‘wet meadows,’ storm sewers and culverts, … man-made drainage ditches, and dry arroyos in the middle of the desert, the Corps has stretched the term ‘waters of the United States’ beyond parody,” Justice Scalia wrote.

Justice Roberts, with Justices Clarence Thomas and Samuel A. Alito Jr., joined in the decision.

Justice Anthony M. Kennedy, who was in the middle between conservatives and liberals, agreed the lower-court judgment should be overturned but disputed Justice Scalia’s reasoning.

“Important public interests are served by the Clean Water Act in general and by the protection of wetlands in particular,” Justice Kennedy said. Justice Scalia’s opinion “seems unduly dismissive of the interests asserted by the United States in these cases,” he said.

Justices John Paul Stevens, Stephen Breyer, David H. Souter and Ruth Bader Ginsburg dissented.

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