Supreme Court Hears Divisive Wetlands Case
If the court decides Clean Water Act does not apply to wetlands adjacent navigable waters, 50% or more of the wetlands in some states may be open to development.
Compiled by staff
Published: Feb 21, 2006
The U.S. Supreme Court is hearing arguments today on cases that may determine whether millions of acres of U.S. wetlands are no longer protected by the Clean Water Act. If the Court decides the law does not apply in the two cases (Carabell v. United States and Rapanos v. United States) 50% or more of the wetlands in some states may be open to development, according to a new survey by the national association of wetland managers.
Five years ago, the Rehnquist Supreme Court ruled in a 5-4 decision that wetlands which sheltered migratory birds were not protected under the Clean Water Act absent some connection to "navigable" waters. According to new data from the Army Corps of Engineers, at least 14,000 to 20,000 acres of wetlands have been opened to development over the last two years as a result of the Rehnquist ruling in the earlier case.
But a survey by the national association of wetland managers found that these losses could multiply if the Supreme Court extended the Rehnquist decision even further by limiting Clean Water Act protections only to those wetlands that drain directly into navigable waters. The estimates of the impact of the cases now before the court are discussed in a new Environmental Law Journal article published by Eric Schaeffer and Karla Raetig of the nonprofit and nonpartisan Environmental Integrity Project.
Carabell and Rapanos will be the first major Clean Water Act cases to be decided by both Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito, Jr.
Schaeffer says: "No wetlands can really be considered isolated, since they are ecologically intertwined with larger bodies of water. The wetlands cases will be the first decided by the newest Supreme Court appointees, and, as such will be pretty closely. We've already seen devastating losses of wetlands under the Rehnquist court. These already grave losses will accelerate dramatically if developers get their way in the Roberts era of the Supreme Court."
In order of impact, the 15 states losing the most wetlands so far are: Nebraska, North Dakota, Florida, Texas, Illinois, Georgia, Colorado, Wisconsin, Indiana, South Dakota, Ohio, California, Minnesota, New York and Iowa.
In a 2005 report, EIP found that a wide range of commercial interests will benefit from recent determinations by the Corps wetlands-related decisions, including a Wal-Mart shopping center in Texas, a titanium sand mine in Georgia, a peat bog mine in Florida, and, in several states, residential development and golf courses. The fact that the Corps has determined a wetland is exempt from the Clean Water Act does not necessarily mean that all of the acreage in question will be destroyed. Developers may choose to preserve some for aesthetic reasons, and in a few instances, state or local regulation could help to fill the void left by the Corps. But in the vast majority of cases, once the Corps decides that the Clean Water Act no longer applies, the wetlands at issue are completely vulnerable to being carved up by commercial interests.
As the 2005 EIP report noted, the United State has lost more than half its native wetlands since European settlement began. Wetland losses averaged 300,000 a year in the late 1970s and early 1980s, according to the U.S. Fish and Wildlife Service, but slowed to about 60,000 acres a year in the late 1990s, thanks to a combination of Clean Water Act regulation and voluntary incentives for conservation.
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