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Wetlands ruling leaves murky legal waters

Marketplace Staff Jun 19, 2006

KAI RYSSDAL: The Supreme Court got down into the fine print of the Clean Water Act today. And left everybody a little bit confused. It’s a case about wetlands. Who can build on them when they’re in private hands. The court ruled 5-4. But Sam Eaton reports from the Marketplace Sustainability Desk…it didn’t really decide anything.

SAM EATON: The Supreme Court was split five to four in its decision to send the wetlands development case back to the lower courts. At issue is whether the federal government can limit the development of wetlands that aren’t directly connected to navigable waters like lakes and rivers. National Audubon Society head Bob Perciasepe says even though the ruling wasn’t decisive it still throws the entire system of wetlands protection into chaos.

BOB PERCIASEPE: They’ve put about 50 percent of the waters that are traditionally covered under the Clean Water Act in a state of uncertainty as to whether they are in or out.

The plaintiffs in this case want to build a mall and condos on some Michigan wetlands not directly connected to navigable waterways. Their lawyer, Rob Rivett, says the Supreme Court’s message is clear: the Corp of Engineers was out of bounds when it rejected their projects.

ROB RIVETT: The Corps was essentially saying that there was no limitation whatsoever to their jurisdiction. That they had the right to regulate every puddle and every drop of water in this nation, and the court said that is not correct. They do not have that scope of jurisdiction.

This case now goes back to the lower court to decide its fate. In the meantime, environmentalists worry that other pending wetland development projects will be green-lighted. That is unless and until Congress steps in to clarify the federal government’s jurisdiction. Today’s decision was the first significant environmental ruling for President Bush’s two new justices, including Chief Justice John Roberts.

I’m Sam Eaton for Marketplace.

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