Justices' Ruling Could Affect Scores of California Wetlands

Jane Kay / SF Chronicle 11jan01

A U.S. Supreme Court decision limiting the federal government's power to protect wetlands could have a profound effect from Central Valley waterfowl ponds and Mono Lake to "prairie potholes" in the Dakotas.

Environmental attorneys say the ruling issued this week also offers a clue as to how the high court may act on other major environmental cases this term.

In its 5-to-4 decision Tuesday, the Supreme Court held that the U.S. Army Corps of Engineers took more authority than Congress intended when it required developers to seek permits before filling wetlands in pools that aren't connected to interstate water systems of rivers, bays and oceans.

"I'm very disappointed by the Supreme Court's split decision. It weakens America's ability to protect its wetlands, which are among this country's most valuable natural resources," said Environmental Protection Agency Administrator Carol Browner.

The justices ruled that although the federal Clean Water Act protects wetlands connected to navigable waters, it doesn't protect isolated ponds and mudflats.

Scientists have come to recognize saltwater tidal marshes, mudflats and freshwater seasonal ponds as ecologically important for breeding, nesting and feeding of migratory birds and other animals and plants.

All rivers and coastal waters, including San Francisco Bay, will continue to receive federal protection, EPA officials say.

Among wetlands at risk of losing federal protection are Central Valley waterfowl ponds, Santa Rosa Plain vernal pools in Sonoma County, streams on the eastern side of the Sierra Nevada, the 50,000-acre Ruby Marshes of Nevada, Mono Lake and playa lakes in Oklahoma, Texas, New Mexico, Arizona and Oregon.

Prairie potholes, depressions in a vast stretch of the northern Plains that contain water and provide cover for much of the continent's migratory waterfowl, are also vulnerable.

Wetland scientists have estimated that 20 percent of the 100 million acres of U.S. wetlands could be affected by the decision. The EPA and the Corps of Engineers were examining the new decision yesterday, trying to figure out how it will affect federal regulations.

"We have been given a very difficult legal and technical task of sorting out what waters we still regulate, given we have lost one of our grounds for regulating waters," said Hugh Barrell, EPA attorney in San Francisco.

Since the 1980s, the Corps of Engineers, which regulates wetlands for the EPA, had extended protection to pools and ponds not connected to water systems

--if birds migrated there.

The rationale was that these isolated waters are part of interstate commerce; people come to hunt or use them for other recreational activities that generate funds for businesses.

Lori Johnson, a spokeswoman for Cargill Inc., was satisfied with the decision, saying her company could have been spared a fight with the Corps of Engineers to develop 143 acres near Hayward, now the site of Sun Microsystems and W Hotel, if the Supreme Court's decision had come decades earlier.

"We've always believed that the migratory bird rule was an unwarranted stretch of federal authority under the Clean Water Act. The act was designed to protect creeks, rivers, ponds, the bay, the ocean and navigable waters," Johnson said.

"We obviously struggled with the concept that because we have a water puddle and a bird could land there, thus it became a valuable property," she said.

There is nothing in the Supreme Court's decision that impedes states from regulating wetlands, said California Deputy Attorney General Joseph Barbieri, who wrote a friend-of-the-court brief that supported protection of wetland habitat for migratory birds.

Yet Barbieri considers national regulation important. "To make wetlands regulation effective, it's important that wetlands be regulated on a national basis. The protection of wetlands in one state can affect other states," he said.

Attorney Tim Searchinger of Environmental Defense, a national advocacy group, said, "This is an incredibly important decision for California" because of the number of wetlands at risk. "It's important for California to step up and start regulating efforts to destroy these water bodies."

Environmental lawyers expect several important decisions from the high court this term, and they hope the latest ruling isn't an indication of its philosophy, Searchinger said.

In two air-quality cases, the justices will determine whether Congress has the authority to delegate to the EPA the job of setting health standards and whether the EPA must consider the cost of these standards on regulated industries as well as the benefits to society.

In a Rhode Island case, the court is reviewing whether the state has to reimburse property owners in cases where it limits development for environmental reasons.

Thus far, the Rehnquist court hasn't given much deference to the government agencies pleading for environmental protection, EPA officials said.

In a 1992 private property case in South Carolina, the court ruled that in certain instances of limiting development, government regulation could go so far that it effectively deprived a property owner of all economically beneficial use and therefore required compensation to the owner.

E-mail Jane Kay at jkay@sfchronicle.com