Editorial: High court’s justices all wet

Friday, June 23, 2006 | 7:16 a.m.

A confusing ruling by the U.S. Supreme Court regarding development on or near wetlands offers protection more by default than by design.

In a 5-4 vote Monday, the justices ruled in favor of two Michigan property owners who wanted to build on their wetlands, but they couldn't agree on the larger issue of just what is protected by the 1972 Clean Water Act.

Justices overturned federal regulators' refusal to allow one property owner to build condominiums about a mile from a lake. Justices also sided with a second landowner who faced prosecution for filling in wetlands to make way for a shopping mall some 20 miles from a river that empties into Lake Huron.

In both cases federal regulators had cited the 1972 Clean Water Act, which protects "navigable waters" from pollution and other activities that can damage them. Justices ruled in favor of the Michigan landowners but were split on the larger issue of whether federal officials had misinterpreted what types of waterways the law is supposed to protect.

Justice Antonin Scalia and three other conservatives on the court wanted a sweeping ruling that cleared the path for developing land unless it directly connects to a waterway. The court's four most liberal members rejected that idea, saying it would unravel 30 years of wetlands protections. Justice Anthony M. Kennedy was the swing vote, as he sided with the Michigan landowners but was not willing to go as far as to limit the act's more comprehensive interpretation of waterways.

The result means that future protection battles will continue to be fought case-by-case. The Supreme Court case also revealed how little Scalia and the other conservative justices respect and understand the natural environment.

Scalia said the Clean Water Act had been erroneously applied to protect "ephemeral streams," "wet meadows" and "dry arroyos in the middle of the desert." He misses the point. As those of us who live in the West know, desert arroyos and even some rivers are only wet during certain times of the year.

Wet meadows, tiny streams and other waters - even those far removed from lakes, rivers and oceans - provide the earth with water storage and a natural filtering system that man-made efforts cannot replicate. Incremental removal and development of wetlands along Louisiana's coast aggravated Hurricane Katrina's effects.

To say that any stream or wetland, no matter how small or seasonal, is insignificant shows a lack of understanding about how the natural environment works and why it must be protected.