- The Washington Times - Monday, June 19, 2006

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.

Environmentalists said the Supreme Court’s decision was too indefinite in interpreting waterways protected by the Clean Water Act.

“There’s going to be uncertainty,” said Tim Searchinger, senior attorney for Environmental Defense, an environmental group.

Among the millions of acres of wetlands in the United States, “You can’t just go out there and analyze each wetland individually,” he said.

However, the National Association of Home Builders said federal agencies should not regulate wetlands far from waterways when it interferes with commerce.

“This is a step forward for affordable housing and the battle against excessive regulation,” said Jerry Howard, National Association of Home Builders chief executive officer. “The court today correctly recognized that there must be limits to how far the federal government can reach upstream.”

In other rulings, the Supreme Court:

• Turned away an appeal in a dispute over the Apotex Inc. development of a generic alternative to GlaxoSmithKline PLC’s antidepressant drug Paxil.

• Asked the Bush administration for advice on antitrust lawsuits that accuse investment banks of rigging initial public offerings, as the justices signaled interest in an industry bid to block the cases.

• Agreed to consider a bid by Michigan to regulate Wachovia Corp.’s mortgage-lending business in a case that may open banks to new oversight across the country. The court said it will hear Michigan’s appeal to decide whether states can apply their lending rules to subsidiaries of Wachovia and other so-called national banks regulated by the U.S. Office of the Comptroller of the Currency.

• Refused to hear a challenge to California rules by home-appliance manufacturers who wanted the courts to bar states from making them report more energy-efficiency information about products than is mandated by federal law.

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