Supreme Court's wetlands ruling could affect mountaintop mining

Supreme Court's wetlands ruling could affect mountaintop mining

Washington (Platts)--21Jun2006

Attorneys are reviewing whether Monday's Supreme Court ruling on a
consolidated wetlands case may affect future Clean Water Act Section 404
permits issued by the Army Corps of Engineers as they relate to coal mining.

In the case, three Michigan wetlands near ditches or man-made drains that
eventually empty into traditional navigable waters were filled, and in another
Michigan wetland case, the Corps denied a permit to fill a wetland. In the
case, a district court and the 6th Circuit Court of Appeals ruled that the
wetlands were under the Corps' jurisdiction because they drained into or were
near navigable waters.

In a split decision, Justice Antonin Scalia wrote the majority opinion
vacating the previous opinions and sending the cases back to the lower courts.
Also voting in the majority were justices John Roberts, Samuel Alito, Anthony
Kennedy and Clarence Thomas. Kennedy filed an opinion concurring with the
ruling. John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen
Breyer were opposed. Breyer filed a dissenting opinion.

Scalia began his opinion by reasoning that the waters of the US include only
relatively permanent, standing or flowing water, and do not include
intermittent flows or ephemeral streams.

"Absent more specific regulations, the Corps must establish a significant
nexus on a case-by-case basis when seeking to regulate wetlands based on
adjacency to non-navigable tributaries."

The Corps still has the jurisdiction to regulate mountaintop mining. Kennedy
wrote that a wetland could be declared navigable waters if it possesses a
"significant nexus" to waters that are navigable, and the Corps has the
authority to regulate that body of water, Joe Lovett, attorney for the
Appalachian Center for the Economy and the Environment, told Platts Tuesday.

"Things were pretty clear before," Lovett said, but this latest ruling has
injected confusion into the permitting process. But he does not think the
current process will change for mountaintop mining unless there are wetlands
up there ? and there aren't too many of those.

In another view, the government must acknowledge more restrictions in the
regulations of Section 404 of the CWA, said Luke Popovich, vice president for
external communications of the National Mining Association. He emphasized that
NMA attorneys are still reviewing the decision, and this is a first "quick
take" on the opinion.

The decision provides a strong rationale for the Corps to proceed with
regulations that are implied or explicit in the decision, resulting in a more
circumscribed regulatory program, he said.

Attorneys for the West Virginia Coal Association are reviewing the case, as
are attorneys for the Corps, Environmental Protection Agency and the
Department of Justice. None would comment on the case while they study it.

The case is Rapanos et ux., et al. versus United States, No. 04-1034. It was
argued February 21.

-- Charlotte Wright, charlotte_wright@platts.com

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