Muddy Waters

Supremes divided on wetlands protection under Clean Water Act

The Supreme Court ruled yesterday neither to sharply restrict the Clean Water Act nor to leave its current broad interpretation untouched. Instead it did ... something else. Spurred by two Michigan property-rights cases, the high court's contentious decision states that wetlands must at least be adjacent to a tributary that flows into a navigable waterway (got that?) in order to be protected under the 1972 law. In effect, moderate conservative Justice Anthony Kennedy was The Decider, as the other eight justices were locked in a stalemate. Four -- including newbies John Roberts and Samuel Alito -- clamored to restrict the definition of wetlands under the law to those with "continuous surface connection" to waterways, which would have drastically decreased the act's current scope. The other four wished to keep the definition -- and protection -- that the Army Corps of Engineers has followed for 34 years under the act. Kennedy's muddled, split-the-difference ruling is likely to lead to years of new regulatory battles and lower-court litigation. Fun.