Issue: April 2006
Sitting on the Fate of the Bay?

Sometime this spring, the U.S. Supreme Court will hand down a decision that could have a dramatic impact on the nation’s environmental-protection programs, including those for the Bay. Developers and other property-rights advocates are challenging federal restrictions on dumping “dredged or fill material”-including sand or gravel dug up elsewhere on the same property-into wetlands if the runoff could get into a navigable waterway. They say government officials have overreached in using the Clean Water Act to block a couple of modest projects in Michigan that don’t abut navigable waters.

     The high court could hand down a narrow decision in the cases, Raponos v. United States (04-1034) and Carabell v. U.S. Army Corps of Engineers (04-1384). It could say simply that the Corps of Engineers’ authority doesn’t reach down a roadside drainage ditch or across a berm. But property-rights advocates have argued for a much broader ruling. Focusing their arguments on the Commerce Clause, which gives Congress its power to protect navigable waters, they say the federal government’s authority does not extend to wetlands just because they have a “hydrological connection” to navigable waters.

     The Bush administration says that applying the Clean Water Act and regulations under it to wetlands is a valid exercise of congressional authority. Environmental groups and most states side with the federal government. The Chesapeake Bay Foundation brief says the Bay eco-system shows that the networks of wetlands and tributaries are “inextricably bound up with downstream navigable waters” and the nation’s waters cannot be restored without the Clean Water Act.