Editorial: Wetlands now at risk

Monday, June 11, 2007 | 7:04 a.m.

Congress needs to reassert authority over its own Clean Water Act in the wake of rulings by the U.S. Supreme Court and the Bush administration. If it doesn't, millions of acres of invaluable wetlands across the country could be drained to make way for tract housing, shopping malls or other development.

From 1972, when the act was passed, until a Supreme Court decision in 2001, wetlands were federally protected. Acting as wildlife habitat, providing clean water through their natural filtering abilities and absorbing floodwaters are just some of the benefits provided by wetlands.

But in a 2001 case brought by suburban Chicago cities, which wanted to build a landfill on the site of seasonal ponds, the U.S. Supreme Court ruled that "non-navigable, isolated" waters within states were not eligible for federal protection.

The case prompted the Bush administration to withdraw Clean Water Act protections from all so-called isolated waters. After outcries from state agencies, environmentalists, sporting associations, flood-control managers and concerned citizens, the protections were restored.

Last year, however, the Supreme Court again ruled on wetlands. In the case of two Michigan developers, it ruled that government can stop the filling in of wetlands, but only if there is a "significant nexus" (in the words of Justice Anthony Kennedy) between the wetland involved and a navigable body of water, such as a stream or lake.

The decision - which resulted in five separate opinions from the justices - is widely regarded as confusing. The Bush administration has now taken advantage of the confusion by ordering that wetlands issues be decided on a case-by-case basis - meaning every wetland is now a potential site for development under weakened federal rules.

We do not believe this is what Congress intended when it passed the Clean Water Act. And neither do many members of Congress. A House bill introduced last month by Reps. John Dingell, D-Mich., and James Oberstar, D-Minn., which has 160 sponsors, would restore the act to its original purpose.

All of the natural waters of the United States, from wetlands to the Great Lakes, need federal protection.