- The Washington Times - Thursday, June 22, 2006

The Supreme Court’s two wetlands decisions this week give a hint of Justice Anthony Kennedy’s desire to be the arbiter between court liberals and conservatives. They also give a hint of what happens when he succeeds: The court delivers a muddle.

This week’s moves don’t solve much about federal wetlands regulations under the 1972 Clean Water Act. In fact, they promise still more litigation at significant expense for property owners. We think it’s time for Congress to rewrite the law in order to dispel confusion.

The court split 4-1-4 over the extent of federal authority to restrict wetlands development and sent the two cases (Rapanos v. United States and Carabell v. Army Corps of Engineers) back to a federal appeals court. Some minor scalebacks could result, depending on how Justice Kennedy’s new catchphrase of a “significant nexus” is interpreted — he posits rather opaquely that the corps must demonstrate “a significant nexus on a case-by-case basis when it seeks to regulate wetlands based on adjacency to nonnavigable tributaries.” It’s still anyone’s guess what this will mean in practice. For now, it means more court opinions, new regulatory guidance and lawsuits as people try to figure it out.

That’s regrettable, since the momentum to scale back federal authority in earnest has been building for years. With good reason: These days, the Army Corps of Engineers regards so many backyards and empty lots as “wetlands” that “puddles … storm drains and roadside ditches” can qualify for protection, as the court’s four conservative jurists opined memorably this week. One lawyer arguing before the court in February posited with some justification that the Supreme Court building itself could be considered a wetland, since rain water falling from its roof makes its way to the Potomac River.

The mixed signals will likely be costly. As Chief Justice John Roberts put it: “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.” There’s precedent for that, as the justice noted, but hardly a good one here. Over the years, “the Corps chose to adhere to its essentially boundless view of the scope of its power,” Justice Roberts noted with evident frustration.

For those reasons, Congress should step in. If the Supreme Court cannot determine its intent in the 1972 Clean Water Act after clear evidence that the Corps has over-interpreted its mandate, it’s time for Congress to tell the agency in more explicit terms how it should proceed.

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