Environmental Defense on December 16th sounded a note of optimism about protection for the nation's wetlands following a 4-4 ruling by the U.S. Supreme Court in the case of Borden Ranch v. United States.
"The Supreme Court has issued a reprieve from destruction for the nation's wetlands," said Environmental Defense senior attorney Tim Searchinger.
In its ruling, the Justices affirmed by an equally divided court, an earlier ruling by a lower court, which held that a developer could not destroy wetlands on a ranch by converting them into a vineyard without a permit under the federal Clean Water Act.
"A wrong decision in this case would have made it easier to destroy almost any wetland area in the country," Searchinger said. "It is disappointing, however, that a majority of Justices did not support this opinion since six appeals court rulings over the past twenty-five yeas have consistently held that the Clean Water Act requires a permit for similar activities that destroy wetlands."
In the Borden Ranch case, a California developer, Angelo Tsakopoulos, used a 100,000-pound machine to pull a massive rake seven feet down in the soil in order to convert the ranch and its wetlands into a vineyard. The developer's actions destroyed the wetlands that drained and filtered runoff from the ranch both by filling them in with sediment and by breaking up a dense soil layer that held water on the surface. Following twenty-five years of established precedent, the lower courts held that a permit was needed to destroy the wetlands – setting up a challenge before the Supreme Court.
"Both arguments in the Borden Ranch case would have created loopholes in the Clean Water Act big enough to drive a bulldozer through," said Searchinger. "First, they argued that any developer could freely destroy a wetland if it was done just by pushing earth around. Unfortunately, that is how most wetlands are destroyed. Tsakopoulos also argued that farmers are free to destroy wetlands if the action is taken to plant crops, the leading cause behind the country's existing wetland loss. Either loophole would leave most wetlands defenseless."
Searchinger also called on the Bush administration not to proceed with plans to rewrite rules under the Clean Water Act that protect wetlands and streams. While timing for the action is unclear, warnings suggest that the administration could eliminate protection for large chunks of the nation's wetlands and rivers. "The Bush administration should show similar mercy for the country's wetlands," Searchinger said.
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