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Quote of the Day - There are very few wetlands in Central Virginia. - Ken Smith

Navigable Wetlands Doesn't Mean That Puddle In Your Backyard

Wetlands is a really dry subject, especially considering the litigation involved with it.  On one side, environmentalists and the agency regulating  federal wetlands (the United States Army Corps of Engineers) believe that "waters of the US" - the operative words invoking government control in the Clean Water Act - mean practically any surface water in the United States.  On the other side are developers and most conservatives who believe that "waters of the US" includes that part typically left out, "navigable." 

The plurality of the recent Supreme Court opinion appears to have sided with the "navigable" part, although the concurrences and dissent may confuse readers and leave them to believe there's something for everyone.  That reading would be a mistake.  Regulation of wetlands is no longer limitless, and the waters to be regulated must be relatively permanent navigable waters, severely curtailing the USACOE's jurisdiction.

MIPTC covered the lead-up to this opinion, and closely predicted Roberts' concurrence.  Roberts chastised the USACOE and the USEPA for adopting "essentially limitless" boundaries of regulation of wetlands.  He suggest that had both agencies followed the Court's decision in SWANCC, then the Supreme Court's decision to rein in the regulators could have been avoided.  Interestingly, he equally chastised his fellow members of the Supreme Court for not providing a unified opinion to guide regulators and developers, but excused this failure by citing to other court opinions where the same thing happened.

Roberts is wrong and he is right.  This opinion could have been avoided had the USACOE agreed to limit its jurisdiction in a more reasonable fashion instead of requiring the Court to do so.  The perspective that this plurality opinion is excusable because previous Supreme Courts have done the same thing is wrong. 

The Court is the court of last resort.  Clarity and consistency are essential.  While some members of Congress may not agree with the final legislation sent to the President to sign, they don't have a right to issue separate concurrences or dissents from the law.  Maybe it's time we reigned in the Supreme Court and required one opinion per case. 

Posted by J. Craig Williams on Wednesday, June 21, 2006


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