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ESPN2: Wetlands ruling clear as mud?

  • "BassCenter" will explore the wetlands ruling this Saturday, June 24, at 11 a.m. ET on ESPN2, so be sure to tune in. (This episode re-airs on ESPN2 June 26 at 5 a.m. ET, June 29 at 5:30 a.m. ET and June 30 at 5 a.m. ET.)


    How far away are a duck blind, a favorite fishing hole and the U.S. Supreme Court?

    Much closer than many hunters and anglers would think after a 5-4 decision by justices earlier this week, a ruling that many in the conservation community are saying has muddied the waters … those surrounding wetlands protections in place since the passage of the landmark 1972 Clean Water Act, that is.

    As a result, this week's ruling and its unclear aftermath will be the subject of discussion on ESPN2's "BassCenter" at 11 a.m. this Saturday, June 24.

    According to Associated Press reports, this week's Supreme Court decision stems from the cases "Rapanos v. United States, 04-1034" and "Carabell v. Army Corps of Engineers, 04-1384."

    While the Court vacated rulings against the two Michigan developers in those cases, it also sent the cases back to federal appeals court for further review.

    In a 5-4 ruling so splintering that justices issued five different opinions totaling 100 pages, the decision indicates that the government can block development on hundreds of millions of acres of wetlands, even on land miles away from waterways, as long as regulators prove a significant connection to the waterways.

    According to the Associated Press, Chief Justice John Roberts, in his first major environmental case, came up one vote short of dramatically limiting the scope of the landmark Clean Water Act.

    At the same time, property rights advocates won a new test for when wetlands can be regulated. Moderate Justice Anthony M. Kennedy said there must be a "significant nexus" between the wetland and a navigable waterway.

    Clear as mud? That's the point said Scott Yaich, the conservation director for the Memphis, Tenn. based Ducks Unlimited.

    He indicates he doesn't believe the 5-4 ruling earlier this week has made anyone happy.

    "You had five votes to vacate the lower courts' ruling, not to reverse it, just to set it aside and send it back to lower courts for more consideration," Yaich said.

    He said that the way the Supreme Court's split vote occurred is important.

    "You had four justices — and that opinion was written by Justice Scalia — (indicate) that their opinion was that wetlands in general would only be considered to be within federal jurisdiction of the Clean Water Act if they continuously had water within them or in the case of wetlands, the wetlands were directly connected to streams and rivers," Yaich said.

    "You also had four justices — and that opinion was written by Justice Stevens — who maintained the position (in a previous case) that the Clean Water Act should be interpreted very broadly regarding jurisdiction over wetlands.

    "So the deciding opinion is that of Justice Kennedy, who disagreed for the most part with the opinion written by Scalia, which would have been so damaging in wetlands conservation — he agreed with Stevens."

    But while that might seem like a victory for conservation-minded groups like Ducks Unlimited, that's where things begin to get really unclear.

    "What Kennedy's opinion does is that it establishes a 'significant nexus test,' a test whereby, on a case by case basis, it must be established that there is a connection between wetlands at issue and navigable waters," Yaich said.

    And that is one of the things that is so troubling from this decision, according to Ben McNitt, senior director of communications for the Washington, D.C.-based National Wildlife Federation.

    McNitt said because it means that this week's Supreme Court ruling has muddied water that has been clear for more than three decades.

    "Literally up to Monday morning, a broad understanding existed for the last 34 years, a broad understanding that the Clean Water Act applied to all wetlands," McNitt said.

    Now, McNitt indicates, the enforcement of Clean Water Act provisions will be thrashed out on a specific, case-by-case basis.

    Yaich points out that the Supreme Court's decision doesn't necessarily mean something good, bad or otherwise.

    At least not yet, that is.

    That's because in several of the justice's opinions, there was a call for federal agencies to "… develop new regulations that reflect the opinion that was handed down," Yaich said.

    "The effect of the decision is really the big question because we don't know how the agencies — the U.S. Army Corps of Engineers and the Environmental Protection Agency — are going to administer the act under this new test," Yaich said.

    "One of the big concerns that everyone has right now is that (this week's ruling) places a tremendous administrative burden on these agencies."

    Yaich said that process will take anywhere from a few months to a year to complete.

    "They have started now, but to have new regulations is a very lengthy process, particularly for regulations that could change as significantly as the existing set of regulations will," he said.

    McNitt agrees that the timetable for the rewriting of the regulations is uncertain. "You never know with bureaucracy how long it will take to write rules," he said.

    In the meantime, he said, it is important for conservation groups and conservation-minded hunters and anglers to pay close attention to what is going on in Washington.

    "It is important for sportsmen, for conservationists, for everyone who cares about clean water to hold these agencies accountable that as they write those rules, they have the broadest possible enforcement of that act," McNitt said.

    McNitt also indicates his organization will be keeping a close eye on — and when necessary, becoming involved in — litigations initiated by interests that have been emboldened by this week's decision.

    Perhaps the best remedy, according to McNitt, is for Congress and the White House to work together and act swiftly on the legislative front.

    According to McNitt and an op-ed piece written by National Wildlife Federation president and CEO Larry Schweiger, that legislation — the Clean Water Authority Restoration Act — has already been written and has 158 bi-partisan supporters.

    By passing that law, McNitt said that the confusion from this week's Supreme Court decision would be cleared up.

    Additionally, McNitt said that the passage of such legislation — and the subsequent signature of President Bush on that legislation — would affirm the Bush Administration's previous pledge and rhetoric concerning wetlands.

    "It's an absolute litmus test," McNitt said. "President Bush in an 'Earth Day' speech of two years ago set out a national goal for his administration of not just 'no net loss of wetlands,' but also of 'net gains of wetlands.'"

    "We are 100 percent supportive of the President and his administration in that goal," he added. "The administration knows that goal cannot be achieved if entrenchments in the Clean Water Act take place."

    Yaich agrees that in the days to come, it will be important for conservation-minded hunters and anglers to stay abreast of what's going on with this issue and to let their voice be heard in Washington.

    "I think the case should demonstrate for the average hunter the importance of the things that happen in Washington in regards to the things that he cares most about, things like going out into the marsh to hunt ducks and seeing the amount of ducks he has seen in the past," Yaich said.

    McNitt agrees, saying that if wetlands protections end up being seriously weakened by this week's Supreme Court decision, places like the prairie-pothole region — where much of North America's ducks are produced each year — could be severely impacted in the future.

    "That's why sportsmen need to understand that their way of life, their tradition, their legacy that they want to hand off to their children, that's what is at stake here," McNitt said.

    "Once sportsmen understand that and are aroused to that understanding, they are the voices that can make a big difference in Congress and the Administration."

    Besides, McNitt said, that's what hunters, anglers and conservationists have been doing all along anyway.

    "The real common ground since the formation of the American conservation movement has been that in order to protect wildlife, you have got to protect the habitat," McNitt said.

    "That's been the common thread since day one and sportsmen were the leaders then and they are the leaders today.

    "What is needed (now) is unity and being on the common ground of protecting this, our heritage, and seeing that this landmark legislation is not eroded but that it is enforced so that we can have clean water."

    In the final analysis, McNitt said that everything — from fish to wildlife to human beings — needs clean water.

    And that's something that is as clear as a bell.

    The Associated Press contributed to this article.