Did court clarify or muddy waters?


The U.S. Supreme Court waded into the waters of the United States earlier this summer, finally defining those waters for the U.S. EPA and the Army Corps of Engineers.
Sort of.
The case involved four Michigan wetlands near ditches or manmade drains that eventually empty into “traditional navigable waters.” In 1989, John Rapanos backfilled three areas without a permit and, even though the nearest body of navigable water was 11 to 20 miles away, he was sued for violating the Clean Water Act because the wetlands were adjacent to “waters of the United States.”
Lower courts upheld the federal jurisdiction over Rapanos’ wetlands. The Supreme Court did not, and said the Corps stretched the definition of “navigable waters.”
The Clean Water Act, wrote Justice Antonin Scalia in his majority opinion, “confers jurisdiction only over relatively permanent bodies of water” like a stream, ocean, river or lake.
Back to lower court. But don’t get too excited. The court’s 5-4 decision sends the case back down to the lower court, where more definitions may be forthcoming on exactly what makes a federally regulated wetland.
Farmers were hoping the ruling would ease regulations that hit them under Section 404 of the Clean Water Act, a section the American Farm Bureau called in 2003 “one of the more onerous regulatory problems production agriculture faces.”
Section 404 regulates the filling of wetlands, which are often called “nature’s kidneys” because they help trap and clarify runoff. They also play a role in flood control, and we saw in Katrina’s aftermath what can happen when you remove that critical wetland function. So, yes, wetlands are valuable and can’t be filled in willy-nilly.
And even though most permits are granted, the average applicant for an individual permit spends more than two years and $271,500 completing the process. Each year, more than $1.7 billion is spent in the private and public sectors to get wetlands permits.
But over the last 20 years, the definition of wetlands has broadened to include a wet spot in a farm field or ditch, even if the closest “navigable water” is 20 miles away.
‘Beyond parody.’ The Supreme Court ruling said the Corps has no business governing a wetland if its effect on water quality is “speculative or insubstantial.” The court also said the Corps, by using “waters of the United States” to define a storm sewer, drain tile, manmade drainage ditches and desert arroyos, had stretched the phrase “beyond parody.”
the real question now is whether definition parameters will come in the form of a Congressional law change, federal regulator rule change or more court interpretations via litigation. We still need a realistic, easily understandable definition of a wetland.
Let’s hope John Rapanos doesn’t have to wait another 17 years to get one.
(Farm and Dairy Editor Susan Crowell can be reached at 800-837-3419 or at editor@farmanddairy.com.)


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