SUNSET BEACH, North Carolina -- Back to the barrier island where my wife and I spend two weeks of every summer, I think of the U.S. Supreme Court decision in June that dealt with the disposition of wetlands. The justices' opinions -- in what was called the most significant environmental case under new Chief Justice John Roberts -- were so splintered that one commentator described the decision as a 4-1-4, rather than a 5-4, split.
Rapanos v. U.S. was about two Michigan property owners who the government decided had violated the Federal Water Pollution Control Act, popularly known as the Clean Water Act. The CWA was enacted in 1972 to reduce or prevent the discharge of pollutants into rivers, lakes and coastal waters of the United States. But it was later expanded to play a more active role in protecting wetlands. In 1988, Congress instituted the "no net loss" policy, which requires developers to restore or create wetlands of size comparable to the wetlands they build on. The actions of Rapanos and Carabell, the property owners involved in the case, did not go as far as considering the compensatory steps. The two simply destroyed wetlands for commercial buildings, the government said.
The Supreme Court tried to side with the developers. Writing for the majority, Justice Antonin Scalia derisively cited dictionary definitions of "waters," "streams" and such to trash the definitions carefully worked out by the Army Corps of Engineers and the Environmental Protection Agency, which are principally responsible for wetland protection under the CWA. These two agencies expanded their jurisdiction, Scalia wrote in mock disbelief, to "cover 270-300 million acres (one acre equals 0.4 hectares) of swampy lands in the United States -- including half of Alaska and an area the size of California in the lower 48 states. And that was just the beginning."