Last month Midland developer John A. Rapanos waited on the steps of the United States Supreme Court for a decision he hoped would prove that the shopping center he tried to build two decades ago near Midland was a perfectly legal proposal.

Standing nearby were several environmental attorneys who were just as intent on knowing whether the federal Clean Water Act’s protections for wetlands would survive its latest challenge by the American property rights movement and the opinions of two newly seated conservative justices. 

But, despite claims to the contrary by both sides, the court’s ruling on June 19 ended up pleasing no one, including Mr. Rapanos. In a case that tested the federal government’s authority to regulate wetlands that to an untrained eye don’t look at all wet, the nine justices essentially said they weren’t ready to decide. Instead, the unusual 4-1-4 decision directed the case back to the lower courts for what is likely to mean more years of legal motions and hearings.

But, despite its seeming ambiguity, the June ruling was a clear warning to environmentalists. Even though they successfully ducked a roundhouse right that could have knocked wetlands protection back a number of decades, the decision made them more aware than ever that four of the High Court’s justices seem intent on diminishing the federal government’s authority to protect America’s natural resources, particularly wetlands.

Timothy Searchinger, a Washington-based attorney for the Environmental Defense Fund, a national organization that filed an amicus brief in support of the government, described it this way:  “The plurality decision expressed extreme contempt for the Clean Water Act.”

Searching for a ‘Significant Nexus’
To some extent, the views of the Court’s four most conservative justices were expected. Chief Justice John Roberts and Associate Justices Clarence Thomas, Antonin Scalia, and Samuel A. Alito were united in their stance that Mr. Rapanos never should have been prevented by the U.S. Army Corps of Engineers, which oversees the federal wetland protection law, from building a shopping center on a 54-acre corn field outside Midland, a small industrial city near Lake Huron. The conservative jurists said that Mr. Rapanos’ land was not connected to navigable waters, as defined in the Clean Water Act, and thus exempt from restrictions against filling or draining wetland.

The four moderate judges—Associate Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer—disagreed. They said that Mr. Rapanos’ crime was clear: He violated the federal Clean Water Act by filling protected wetlands with sand without a federal permit, a position consistent with U.S. District Court Judge Lawrence Zatkoff’s long-ago ruling of March, 1995. 

The Supreme Court’s deciding vote was cast by Associate Justice Anthony M. Kennedy, who in a separate opinion steered a middle path between the opposing sides. Justice Kennedy found that water draining from land owned by Mr. Rapanos does, in fact, flow into a stream and then into a navigable lake 20 miles away. But Mr. Kennedy, who was intent on preserving federal protections for wetlands, nevertheless found weaknesses in how the government applied the law.

In a nod to Mr. Rapanos and his 18-year struggle, Mr. Kennedy said that just because water drained into a distant lake that was navigable was not in itself sufficient to trigger the wetlands protections under the federal Clean Water Act. But exactly what would be sufficient remained unclear in his opinion, which remanded the case back to the federal district court where the case originated.

What is clear is that Mr. Kennedy wants to secure the credibility of federal environmental programs. He noted that if the Supreme Court embraced the view of its conservative wing, 36 years of legal precedent for federal protection of wetlands would, like the waters that nourish them, be drained away, putting millions of acres of environmentally valuable land at risk from man-made harm. Justice Kennedy, who was raised in California, noted that, under the conservative wing’s interpretation, more waterways like the Los Angeles River, which is dry most of the year, would be eligible to be diverted, encased in concrete, or otherwise ruined even though they are vital parts of a natural drainage system, simply because they are intermittent.

So Justice Kennedy remanded the case to the lower courts, and urged judges there to consider a reasonable standard that would respond to the issues in Mr. Rapanos’ case, but also protect the nation’s wetlands. He suggested that a new trigger for federal protection could be what he called a “significant nexus” to navigable waters. By that, he seemed to mean that the required connection between wetland and waterway might be closer than the 20 miles that separated Mr. Rapanos’ land from the Saginaw Bay and Lake Huron. And without such a “significant nexus,” he said, a wetland could be drained or filled without the federal government’s intervention.

Whether Mr. Rapanos’ land had a significant nexus to navigable waters was an issue for the district court to decide, said Judge Kennedy.

Storm Over Sand
The case decided by the nine justices began in 1988 when Mr. Rapanos, who is now 70 years old, saw an opportunity to build a shopping center on a 230-acre parcel he owned along Salzburg Road near Midland. According to court testimony, Mr. Rapanos knew of the state and federal wetland protection statutes and asked the Michigan Department of Natural Resources to inspect the site. The scale of the development had already attracted the attention of state inspectors, who sent him an application and advised him that the land was suitable for development if he identified the wetlands and did not fill or drain them without a permit.

The 1972 federal Clean Water Act and a similar 1979 Michigan statute both require such a permit, in order to protect land that is valuable because it cleanses and absorbs water and provides habitat for fish, birds, and other wildlife. Mr. Rapanos was repeatedly ordered by government regulators to gain a permit before he proceeded with any construction activities on the land. He refused, arguing that the state and federal wetland law did not apply to his land and therefore he was not obligated to obey any of the government’s stop work orders.

In 1994, the United States Department of Justice brought separate criminal and civil suits against Mr. Rapanos. Following a bench trial in the criminal case, District Court Judge Lawrence Zatkoff, who was appointed by President Ronald Reagan, ruled that Mr. Rapanos was guilty of filling wetlands on the Salzburg property. Although federal prosecutors asked for a five year prison term, Judge Zatkoff ordered him to pay a $185,000 fine and serve three years of probation.

Inside the Decision
The sharp division on the Supreme Court is the result of conflicting precedents regarding the scope of the Clean Water Act. In 1985, in United States vs. Riverside Bayview Homes, the Supreme Court unanimously found that the Corps had the authority to limit the construction of condominiums on wetlands near Lake St. Clair, north of Detroit, citing the potential for the development to pollute navigable waters, which were close by.

Sixteen years later, in2001, in another case, Solid Waste Agency of Northern Cook County (SWANCC) vs. United States Army Corps of Engineers, the Supreme Court narrowly decided, five to four,that a coalition of Chicago suburbs did not need permits to fill wetlands in quarry they wanted to turn into a trash disposal site. The Court ruled that the wetlands were completely isolated from navigable waters.

What’s interesting is that in the Rapanos case, the conservatives on the Court, the moderates, and Justice Kennedy all cited these book end cases in their opinions. But they viewed them in remarkably different ways.

Conservative Justice Scalia, for instance, accused the Corps of functioning as an “enlightened despot” that broadened the scope of the Clean Water Act “beyond parody.” He suggested that the Riverside decision was inapplicable because, in that case, the wetlands in question had a clear surface connection to Lake St. Clair. SWANCC, he wrote, concerns wetlands isolated from navigable waters, and therefore applies to Mr. Rapanos’ wetlands, which he found to be similarly isolated.

“The Corps must necessarily choose some point at which water ends and land begins,” Justice Scalia wrote.

But liberal Justice Stevens’ opinion argued that Mr. Scalia’s “revisionist reading” of the SWANCC decision was inadequate in the Rapanos case, because in SWANCC, the wetlands—actually a manmade quarry—were so clearly isolated from navigable waters. Unlike the quarry, Justice Stevens wrote, Mr. Rapanos’ property is indeed adjacent to navigable waters because there are tributaries leading from it to navigable waters. And the Riverside decision, Justice Stevens argued, granted the Corps adequate jurisdiction, as stipulated by Congress in the Clean Water Act.

No Win, but a Warning
The Court’s ruling prompted a range of responses from participants.

 “I hope that the courts read the Supreme Court opinion with an objective eye,” said Reed Hopper of the Sacramento-based Pacific Legal Foundation, Mr. Rapanos’ attorney. “We have five justices that have clearly stated that there must be some limits to jurisdiction and that the Corps and EPA have gone too far in regulating wetlands.”

Mr. Rapanos continues to view the federal government’s oversight as an intrusion on his rights. “It just isn’t right,” he said in a video posted by the Pacific Legal Foundation, which represented him. “Somebody has to stand up and fight the federal government on this illegal grabbing of people’s property.”

Russ Harding, the senior environmental policy analyst for the Mackinac Center for Public Policy, a Midland-based free-market think tank, suggested in an article in The Detroit News that the law for managing wetlands needs to beclarified. 

“Congress should fix the mess it created by more clearly defining which wetlands the Clean Water Act covers,” said Mr. Harding, who served as the director of the Michigan Department of Environmental Quality from 1995 to 2002, a term rife with controversy over what many activists viewed as his anti-environmental stances. “Out of respect for the Constitution, Congress should regulate only relatively permanent wetlands that are adjacent to and inseparably bound up with navigable waters.”

But Patrick Parenteau, Director of the Environmental and Natural Resources Law Clinic at Vermont Law School, said the credibility of federal environmental policy is at risk. He noted that if Justice Kennedy had concurred with his conservative colleagues, the Clean Water Act would be altered dramatically. “Justice Kennedy bought everybody some time to try to work out a long range solution to this problem,” he said.

Ben Buchwalter, a student at Haverford College in Pennsylvania, reports and writes for the Michigan Land Use Institute’s news desk under a joint program sponsored by the college and the Institute. Reach him at benb@mlui.org