U.S. Water News Online
WASHINGTON -- After fighting the federal government for
more than 18 years, Keith Carabell is resigned to more uncertainty
after the U.S. Supreme Court ordered another look at his struggle to
build condominiums in a wetland area.
"I'm not sure I'll live to see the end of this," the 79-year-old
Macomb County accountant said after the nation's highest court ruled
that regulators might have exceeded their authority in preventing him
and a second Michigan landowner from developing their properties.
In a case so divisive it produced five separate opinions totaling
more than 100 pages and no clear majority, the justices combined
separate lawsuits involving Carabell and developer John Rapanos to
affirm the long-standing authority of federal regulators over
hundreds of millions of acres of wetlands -- even on land miles from
The court's four conservative justices favored sharply curtailing
the government's jurisdiction over wetlands under the 1972 Clean
Water Act, while the four liberal members argued the U.S. Army Corps
of Engineers should have discretion to protect wetlands adjacent to
tributaries of waterways such as rivers and lakes.
But the controlling vote was cast by moderate Justice Anthony M.
Kennedy. He joined the conservatives in overturning lower court
rulings against Carabell and Rapanos, yet suggested federal agencies
could thwart development of wetlands with a significant connection to
The first major environmental ruling under Chief Justice John
Roberts gave neither environmentalists nor property rights activists
a clear-cut victory.
"It muddied already muddy waters on this issue," said Jim Murphy,
wetlands counsel with the National Wildlife Federation.
Despite providing the decisive vote in a 5-4 decision to return
the Carabell and Rapanos cases to lower courts for further
consideration, Kennedy rejected many central premises of the opinion
issued by those he voted with, including its author, Justice Antonin
Kennedy even held out the possibility that, once the lower courts
apply his proposed standard for determining federal jurisdiction over
wetlands, Carabell and Rapanos still could lose. Kennedy said
wetlands could come under the Clean Water Act if they "significantly
affect the chemical, physical and biological integrity" of nearby
"It's really a bizarre situation," said Richard Lazarus, a
Georgetown University law professor.
Joining Scalia in the conservative bloc were Roberts, Justice
Clarence Thomas and new Justice Samuel Alito. Siding with liberal
Justice John Paul Stevens were Justices David H. Souter, Ruth Bader
Ginsberg and Stephen Breyer.
The justices themselves appeared troubled by their inability to
agree on a clear standard for wetland protection. Roberts said the
result was confusing and that "lower courts and regulated entities
will now have to feel their way on a case-by-case basis."
Stevens predicted developers would be uncertain about whether they
would need permits to work around wetlands and regulators would
struggle to apply Kennedy's test for determining whether land is
connected to a navigable waterway.
Several justices urged the U.S. Army Corps of Engineers, the
agency that determines whether to allow development of federally
regulated wetlands, to clarify its regulations.
"I think it's a message to all federal agencies that they need to
define their authority clearly under the law," said Reed Hopper, a
lawyer with the Pacific Legal Foundation, which represents Rapanos.
Congress also may get involved. Bills pending in the House and
Senate favor an expansive view of federal authority over wetlands.
Rep. John Dingell, D-Mich., a sponsor of the House measure, said the
Clean Water Act was meant to cover all the nation's waters and
"By remanding the case back to the lower courts, the (Supreme)
Court continues to bungle the clear intent of Congress," Dingell
Rapanos, 70, of Midland, ran afoul of regulators by attempting to
develop three parcels they said contained wetlands.
He filled in a portion of one property with sand to build a
shopping center, defying cease-and-desist orders and insisting it had
no wetlands. The nearest navigable waterway is a Lake Huron tributary
river about 20 miles away, but state and federal officials said
adjacent ditches provided a direct surface link.
Carabell wanted to build condominiums on a 19-acre parcel in
Macomb County, north of Detroit. He obtained a state permit but the
Army Corps balked, saying the property had wetlands within the Lake
St. Clair drainage system although they were separated from a
tributary ditch by a man-made earthen berm.
Carabell and Rapanos lost in U.S. District Court and the 6th U.S.
Circuit Court of Appeals in cases reaching back to the 1980s.
The Supreme Court's ruling was among several in recent years that
grappled with the question of which wetlands are subject to federal
regulation. They have intensified the debate rather than settling it.
In his opinion, Scalia complained that federal regulators claim
jurisdiction over as much as 300 million acres of swampy lands. "The
entire land area of the United States lies in some drainage basin,"
Scalia had said the Corps of Engineers misinterpreted the term
"waters of the United States."
"In applying the definition to `ephemeral streams,' `wet meadows,'
storm sewers and culverts, ... man-made drainage ditches, and dry
arroyos in the middle of the desert, the Corps has stretched the term
`waters of the United States' beyond parody," he wrote.
Stevens countered that Scalia's opinion "needlessly jeopardizes
the quality of our waters" by attempting to undo three decades of
Scalia "seems unduly dismissive" of the public interest in clean
water and wetland preservation, Kennedy said, while agreeing existing
regulations were written too broadly.
The cases are Rapanos v. United States, 04-1034, Carabell v. Army
Corps of Engineers, 04-1384.
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