Environmentalists scored a victory yesterday — albeit a fragile one — when the U.S. Supreme Court let stand a lower court ruling that the Clean Water Act applied to attempts by developers to fill wetlands using an increasingly common method known as deep ripping. The case concerned a California developer, Angelo Tsakopoulus, who used deep ripping to turn wetlands into parcels for sale as vineyards and orchards. In doing so, Tsakopoulus did not seek permits required under the Clean Water Act, arguing that the law did not apply to deep ripping because the process does not result in the “discharge” of “pollutants,” two key terms of the act. When a federal appeals court disagreed with that logic, Tsakopoulus appealed to the Supreme Court. Justice Anthony Kennedy did not participate in the decision because he is a longtime acquaintance of the plaintiff; the others justices were split 4-4 in their verdict. Under court rules, a tie vote affirms the lower court decision — but in all probability, enviros have simply dodged the bullet, because developers, the forestry industry, homebuilders, and farmers have all vowed to continue to look for legal chinks in wetlands protections.
