Feds Lose Appeal In Wetlands
Case That Could Reduce Power

BALTIMORE — Stung by a December ruling that could jeopardize the federal government’s power to regulate millions of acres of questionable "wetlands," the U.S. Justice Department intervened last month, asking a three-judge panel of the U.S. 4th Circuit Court of Appeals to reconsider.

The judges said no.

That leaves the federal government with a tough choice: does it accept the ruling, which could tie the hands of regulators throughout a multi-state region, or does it dare carry the appeal to the Supreme Court — and risk loosening bureaucratic control nationwide?

The quandary stems from a federal case against developers accused of filling in 50 acres of so-called "wetlands" in southern Maryland. Prosecutors won their case at the local level but lost it in appellate court, where a three-judge panel of the 4th Circuit overturned the conviction.

In the process, the appellate judges also struck a potentially severe blow at the entire "wetlands" regulatory program, declaring federal regulation of isolated "wetlands" invalid. They ruled that the federal government only has control over wetlands that are tied to navigable waterways — precisely what the much-abused law actually says.

Rather than being sanctioned by any actual law, federal authority over millions of acres of private property ranging from legitimate swamps to prairie potholes has evolved from a series of court rulings built layer after layer atop one another. Their foundation, however, rests on the government’s authority to regulate "navigable" water, and two of the three judges hearing the Maryland appeal ruled that the land in question was too remote from navigable water to qualify.

Inasmuch as most alleged "wetlands" in the country are equally or even more isolated from waterways, the decision has the potential to free millions of acres from the government’s grip.

Because the case has national implications, local prosecutors asked the Justice Department to decide whether or not to appeal. Hours before the deadline for filing an appeal, federal lawyers asked for the rehearing in front of the three judges who ruled against them.

By appealing, the Justice Department risked the possibility that the panel might go even further in scaling back wetlands control. It was a calculated risk, however, because the appeals court involved only has jurisdiction over the states of Maryland, Virginia, West Virginia, and North and South Carolina.

On the other hand, those states contain significant areas of marshland, over which federal regulators would be exceedingly unwilling to relinquish control. Now that the appeal has failed, "wetlands" promoters can be expected to exert intense pressure on the government to carry the turf battle to the Supreme Court. A loss by the government there would rein in federal power nationwide.

"There are risks to anything you do," said Justice Department spokesman Bill Brooks.

"It's not clear what the next step is," Assistant U.S. Attorney Warren Hamel said after the failed appeal. He said his office would make plans to retry the case in federal court in Maryland.