Energy & Environment

Wetland Wars

Millions of acres of remote bogs, fens and swamps could lose their federal protection.
by | February 2006

Tom Arrandale

Tom Arrandale is a GOVERNING correspondent.

Property rights advocates have caught governments by surprise several times in the past few years. They persuaded Oregon voters to approve a ballot measure to compensate landowners subjected to land-use regulations. Last year, they stirred a political hullabaloo in state legislatures after the U.S. Supreme Court affirmed governments' power to condemn property through eminent domain. Now, they and their legal allies have gotten the nation's top court to take up a challenge to the federal government's authority to protect much of the country's surviving wetlands.

Last October, the Court agreed to hear cases filed by two Michigan families. In two separate cases, the land-owning families are contesting the U.S. Army Corps of Engineers' power to stop them from building on privately owned wetlands. The plaintiffs contend that their properties lie beyond the reach of federal regulation because the wetlands are too distant or too detached from navigable rivers and lakes of national significance. If the Court agrees, more than half of the country's bogs, fens, swamps and intermittently water-logged lands could lose federal protection. What's more, all federal and state authority to regulate water pollution could conceivably be in jeopardy.

The Clean Water Act of 1972 declared wetlands, creeks and intermittent streams to be "waters of the United States" if their waters eventually flow into rivers, lakes and coastal bays considered to be navigable. Ever since, homebuilders, Realtors, farmers and many state highway departments and local development agencies have been chafing about the drawn-out deliberations by the Corps and the U.S. Environmental Protection Agency to grant or deny permits to drain or fill even the smallest, most remote wetlands that lie in watersheds flowing to navigable waters. Landed interests insist that the Corps consistently construes its jurisdiction more broadly than the U.S. Constitution allows, and the issue before the Supreme Court is whether the federal government should, as one lawyer in the case puts it, "regulate wetlands remote from navigable waters as sort of a super zoning body."

In a 1985 case, the Supreme Court found unanimously that nearby wetlands are "inseparably bound up" with the country's navigable waters. Five years ago, however, the justices split 5-to-4 in ruling that the Corps pushed its regulatory power too far when it denied Chicago suburbs a permit for a landfill where migratory birds occasionally light on isolated wetlands that don't drain into other waters. That ruling left the extent of federal jurisdiction in doubt and emboldened conservative-minded groups to keep pressing the Michigan landowners' cause.

Utah and Alaska have filed a brief supporting the challenge along with local water-supply agencies in California and Arizona. As many as 25 other states may counter by signing on to a brief that the New York and Michigan attorneys general drafted in support of Corps' authority. Environmental lawyers fear the Court could cut the legal ground out from beneath Clean Water Act powers that underpin most federal and state regulation of water quality.

The American Farm Bureau Federation suggests that state and local officials would do better than federal agencies at protecting the most remote wetlands. But Illinois state Representative Karen May, who chairs the House Environmental Health Committee, points out that the bureau joined with Realtors and homebuilders lobbies to stymie state wetlands legislation that would have allowed counties to set their own stricter regulations. Business interests clearly stand to profit by keeping state and local governments from filling the gap if the Court circumscribes federal jurisdiction.

But other Americans are recognizing they've also got a stake in preserving natural wetlands. Alarmed by the Court's ruling that curtailed federal jurisdiction in the Chicago suburbs landfill case, hunters and fishermen persuaded the Wisconsin legislature to meet in special session four months later to extend state protection to isolated wetlands that migrating waterfowl rely on. Three years ago, when the Bush administration mulled over regulatory changes that severely circumscribed where wetlands rules apply, sporting groups around the country rallied together with green organizations and 40 state governments to persuade the White House to back off.

The Lower 48 states have already lost half of their 200 million acres of vital wetlands. There's a public consensus behind protecting what's left that rises above political differences over gun control and social issues. In case the Supreme Court rules that that's beyond the federal domain, state and local officials would be wise to get ready to protect them through other measures.


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