Tuesday, October 11, 2005

More threats to wetlands at the US Supreme Court

The US Supreme Court has agreed to review whether the Clean Water Act (CWA) allows the federal government to protect wetlands that are hydrologically connected to navigable "waters" (rivers, lakes, etc.), but are not directly adjacent to navigable waters. A decision limiting the CWA would further reduce wetlands protection, a process that began several years ago when the Supreme Court ruled that that the CWA did not protect wetlands that are completely isolated from navigable waters.

CNN and New York Times had only brief reports about this issue, so I did a little research. That the Supreme Court agreed to hear this case is ominous; it means that at least four justices supported reviewing it. That might mean that at least four justices think the lower court was wrong in upholding the authority to protect wetlands. On the other hand, lower courts are split on whether wetlands like the one under review are protected, so the Supreme Court might have accepted the case in order to resolve the split decisions, and not because they thought it was wrongly decided.

We'll have to wait and see what happens with this case, and hope that it's not bad news. Here in California, even wetlands that are not protected by the Clean Water Act are still protected by state law, particularly the California Environmental Quality Act. We have tried to tell that to Santa Clara County, but the County isn't listening. Depending on this case, it could become even more important for the County to start listening.


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