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Monday, June 18, 2007

Environment - Post-Raponas wetlands guidelines issued, criticized

A year ago, on June 19, 2006, the U.S. Supreme Court issued its 5-4 ruling in Raponas v. U.S. - see ILB entry here, headed "U.S. Supreme Court wetlands decision today muddies waters." See also this Sept. 22, 2006 ILB entry, where the 7th Circuit gave its opinion of the ruling.

Today the NY Times has an editorial, titled "Muddly Waters." Some quotes:

The Environmental Protection Agency and the Army Corps of Engineers have finally issued guidelines about which streams and wetlands are subject to federal jurisdiction. Unfortunately, they are just as confusing as the Supreme Court decision they are supposed to carry out — guaranteeing endless litigation, while increasing the chances that valuable wetlands will be needlessly destroyed.

That is why Congress needs to move quickly to approve clarifying legislation that would reaffirm the broad federal protections lawmakers intended when they passed the Clean Water Act more than 30 years ago. The sponsors of a bill that would do just that — Russell Feingold in the Senate and John Dingell and James Oberstar in the House — should hold hearings and get Congress moving.

The nub of the problem is an ambiguous 2006 ruling involving a Michigan landowner who had been denied permission to develop wetlands that had no obvious connection to other bodies of water. Four conservative justices ruled that federal jurisdiction extended only to navigable waters and adjacent wetlands. Four ruled that the law covered all waters, the government’s traditional view. Justice Anthony Kennedy sought to split the difference, ruling that a wetland could be protected if the government could establish a “significant nexus” between it and a navigable body of water somewhere downstream.

The new E.P.A.-Corps of Engineers guidance follows Justice Kennedy’s tortured middle way.

Here is the U.S. EPA webpage containing the new wetlands guidance and other materials.

Posted by Marcia Oddi on June 18, 2007 09:18 AM
Posted to Environment