Supreme Court to Hear
Landmark Wetland Case

March 21, 2006 
 

SUPREME COURT TO HEAR LANDMARK WETLANDS CASE
On Tuesday, the U.S. Supreme Court will hear arguments that could decide which wetlands the federal government can regulate.  The case before the court involves a couple of construction projects in the state of Michigan, but it's being followed closely throughout the country.

Here are three different looks at the subject.  One from a news prospective, one from developer's and one environmentalist's.

With the large number of wetlands in the City of Novi, this ruling could have a huge impact on future growth in our city.

A Commentary from Great Lakes Radio Consortium's Michael Leland:

The federal Clean Water Act is supposed to stop people from polluting streams, wetlands and other waterways that are connected to the country's major lakes, rivers and coastal areas, but what if the wetland in question is located 20-miles from the nearest major waterway? Is it covered by the Clean Water Act? That's the question the court will consider.

In the 1980's John Rapanos started moving sand from one part of property he owned in Michigan to another, to fill in some wetlands. He wanted to sell the land to a shopping mall developer. Trouble is, he didn't get permits from the Army Corps of Engineers to fill in the wetlands. The government says he should have.

"The property has a drainage ditch that runs through it…"

Robin Rivett is a lawyer for the Pacific Legal Foundation. It's a property-rights group that is representing Rapanos.

"And because of the movement of the sand on the property, which is characterized as wetlands, the government came in and has prosecuted him for actually discharging fill material into the navigable waters."

Rapanos was charged with violating the Clean Water Act. Washington is demanding 13-million dollars in fines and fees, and wants him to set aside about 80-acres as wetlands.

In another case, that's been combined with the Rapanos matter, developers in Southeast Michigan were denied permits to fill in wetlands so they could build a condominium complex. That site is about two miles from Lake St. Clair, which lies between lakes Huron and Erie.

In both cases, the federal government says the sites fall under the Clean Water Act because they're located near navigable waters. Actually, that term – navigable waters – has evolved over the years and come to mean "interstate or intrastate waters," along with their wetlands and tributaries.

The plaintiffs, their attorneys and supporters say the land should be governed by state environmental regulations, rather than the federal Clean Water Act, but on the side of the government in this case is 35 state governments, along with many environmental and conservation groups.

Jim Murphy is a lawyer for the National Wildlife Federation. His group has filed briefs on behalf of more than a dozen organizations that support the federal position.

"What is at stake here is the ability of the act to protect the vast number of tributaries that flow into navigable waters and the wetlands that surround and feed into those tributaries. If those tributaries and wetlands aren't protected under the federal Clean Water Act, it becomes difficult if not impossible under the Clean Water Act to achieve its goal to protect water quality."

Murphy says if the Supreme Court rules that Congress did not intend to protect wetlands like the ones in this case, then about half the wetlands in the country could lose their federal protection. Murphy and others on his side worry that wetlands could begin disappearing more quickly than they already do today.

Scott Yaich directs conservation programs for Ducks Unlimited – a wetlands protection group.

"The landowners who have those wetlands would no longer be subject to getting the Corps of Engineers to review, so essentially they could do anything they wanted."

The lawyers for the landowners don't see it that way. The Pacific Legal Foundation's Robin Rivett says individual states would have something to say.

"I believe there are 47 states that have their own clean water programs. If it is clear that the federal government doesn't have jurisdiction over local waters, the states will step in to protect those waters."

Maybe they will; maybe they won't, say environmental groups. They fear a patchwork of water protection laws. They say it could mean polluted water from a state with weaker laws could flow into a state with stronger water protection laws.

Jim Murphy of the National Wildlife Federation.

"The Clean Water Act provides a floor. It provides comprehensive protection, a floor beyond which states must maintain that level of protection."

Those who support the property owners in this case say it's about more than clean water – it's also about land use. They say if the court rules that waterways and wetlands are interconnected and all deserving of protection under the Clean Water Act, then what could be left out?

Duane Desiderio is with the National Association of Home Builders, which has filed briefs supporting the property owners.

"All water flows somewhere. Every drop of water in the United States, when it goes down the Continental Divide, is going to drain into the Atlantic Ocean, the Pacific Ocean, or the Gulf of Mexico. Pretty much."

Both sides are hoping the Supreme Court provides a clear definition of which wetlands and tributaries Congress intended to protect when it passed the Clean Water Act. A decision is expected this summer.

Building A Balance: Wetlands Regulation Environmental Education Fact Sheet
Published by the National Association of Home Builders

Wetlands protection has steadily gained national attention in the past two decades as America grapples with protecting its more than 100 million acres of wetlands in the continental U.S. and another 170 million in Alaska. Wetlands that function as individual aquatic systems are vital to environmental integrity because they contribute to habitat diversity, help cleanse polluted water, and can be an important factor in flood control. Wetlands are also beginning to be seen by some as natural amenities with an aesthetic value similar to trees or open space.

Section 404 of the Clean Water Act requires permits for the discharge of dredged or fill material into "waters of the United States" and "wetlands." "Waters of the U.S." is defined broadly to include virtually all surface waters in the nation. "Wetlands" is defined broadly to include countless isolated pockets of land that oftentimes are too dry to meet the common-sense definition of the word.

The program is jointly administered by the Army Corps of Engineers (Corps) and the Environmental Protection Agency (EPA). The Corps issues the permit, while EPA maintains an oversight role with power to veto any permit. Section 404(g) allows qualified States to assume the Section 404 program and administer it for the federal government. Waters traditionally used for navigation by interstate and foreign commerce, however, remain under the control of the Corps and EPA. To date, only Michigan and New Jersey have accepted this responsibility, although several states have submitted or are currently considering submission of applications for assumption.

There are two kinds of permits available under the Section 404 program: individual and general. Individual permits are issued for a specific activity in a specific location. Individual permits require extensive scrutiny, the preparation of reports and the completion of an alternatives analysis. Individual permits typically take over a year to obtain.

General permits, on the other hand, are permits that authorize certain activities that involve minor alterations to wetland areas and that individually and cumulatively produce minor environmental impacts, such as installing utility lines. General permits are meant to provide an expedited permitting process. These permits allow developers around the country to perform similar activities without the delay that usually accompanies the issuance of individual Section 404 permits. General permits may be issued on a state, regional or nationwide basis. Since 1977, the Corps has issued a series of nationwide permits which are applicable across the country.

Nationwide permits came about as the result of a mid-1970s lawsuit filed by the Natural Resources Defense Council (NRDC v. Calloway). With the ruling, the nation's water resources under regulation were expanded from traditionally navigable waters to "all waters of the U.S." The Corps of Engineers, recognizing that it did not have the resources to regulate every activity in all waters, created the nationwide general permit program, a streamlined program of regulation that would allow certain limited discharges under Section 404 for wetlands that were, by and large, of marginal environmental value.

In 1977, the Nationwide Permitting Program (NWP) became part of the Clean Water Act under the 1977 Clean Water Act Amendments, showing that Congress endorsed the program as a way to provide administrative efficiency in activities that have minimal environmental impact.

The most common nationwide permits used by the development industry are NWP 12 (utility lines), NWP 14 (minor road crossings), and NWP 26 (filling of isolated or headwaters wetlands unconnected to rivers, streams and waterways). The earliest version of NWP 26 allowed discharges in up to 10 acres of wetlands.

In 1978, the Corps removed the acreage limitation on NWP 26 as a result of President Carter's Executive Order to make regulations less burdensome. Almost immediately, the National Wildlife Federation filed suit against the Corps, arguing that removing the acreage limitation would harm the environment.

In 1982 as a result of that lawsuit, the Corps issued new regulations: the maximum acreage limitation of 10 acres was reinstituted; agencies such as the U.S. Fish and Wildlife Service, the Environmental Protection Agency and the National Marine Fisheries Service were required to be part of the decision-making process; and builders and developers using NWP 26 were told to file a pre-discharge notification with the Corps 20 days prior to filling for fills between one and 10 acres.

In 1992, the NWP program was modified again, changing the pre-discharge notification to 30 days; requiring that those using the permit provide a wetlands delineation along with the request; and adding "discretionary mitigation." Mitigation requires compensating for the filling of wetlands through a financial contribution or the finding of a suitable wetlands restoration site on or near the development project.

In 1996, the use of NWP 26 was modified again: acreage limits were reduced to between one-third of an acre and 3 acres; pre-discharge notification was increased to 45 days; wetlands mitigation was made mandatory; and NWP 26 could not be used in tandem with other NWPs. The Corps also announced that NWPs would be phased out and replaced with a set of so-called "successor permits" in 1998.

In 1998, the Corps announced a series of activity-based wetlands development permits, or successor permits to NWP 26. One of the more notable permits allowed some limited flexibility on wetlands fills in master-planned communities, which utilize considerable environmental and land use planning. Soon after its introduction, however, the master-planned permit was revoked by the Corps. The Corps also placed restrictions on the use of NWPs in floodplains and certain waters of the U.S.

To get a permit, an applicant must first obtain a jurisdictional determination which outlines wetlands boundaries on the property. Then the applicant must obtain state water quality certification for the permit. Water quality certification is required to show that the discharge will not cause or contribute to a violation of any applicable water quality standards. Once the water quality certification is obtained, the permit application is evaluated for compliance with the 404(b)(1) Guidelines, the substantive standards for permit review. Generally, the (b)(1) Guidelines require the applicant to prove that there are not practicable alternatives to filling the wetland (including purchasing non-wetland sites not owned by the applicant) and that the discharge will not cause significant degradation of the aquatic environment. Finally, the Guidelines require the applicant to provide mitigation to offset any environmental impacts of the discharge.

Under Section 404, EPA and the Corps both have enforcement authority. The Corps typically takes the lead on enforcement actions involving unpermitted fills. Most of the enforcement of the Clean Water Act falls to the entities responsible for administering the program. However, Section 505 of the Act allows any citizen to commence a civil action against anyone who is thought to be in violation of an effluent limitation or other limitation impost by the CWA. Further, any citizen may commence a civil action against the Administrator for failure to perform any act or duty required under the Act. Section 505(d) allows the court to award costs of litigation to any prevailing party whenever the court determines such an award is appropriate.

Developers and builders should always contact the nearest Army Corps of Engineers office prior to disturbing any area that might be considered a wetland, to determine if a permit is necessary.

In obtaining permits from several authorities (i.e. federal, state, and local governments), overlapping jurisdiction may result in administrative problems. Ambiguities and inconsistencies in the various regulations may very well appear. If these problems cannot be resolved during the application process, the applicant's only recourse is to take special care in completing all applications properly. This may prevent problems or lessen their impact later on.

As with the Endangered Species Act, protection of wetlands through the enforcement of CWA regulations has resulted in a great deal of controversy. Much of the debate stems from three particular issues: the lack of a universally agreed upon definition of what constitutes a wetland for purposes of regulation; a one-size-fits-all approach that regulates all wetlands as if they were all pristine, ecologically-sensitive waters; and regulations that, while ecologically worthwhile, infringe on property rights guaranteed under the U.S. Constitution.

Scientists, Congress, and regulatory agencies have long grappled with defining wetlands. In the popular mind, wetlands consist of ponds, bogs, marshes, swamps, estuaries, or bottomland forests. The scientific definition, however, is highly technical and based on hydrology, soil condition, and the presence of specific types of vegetation. Application of the broad standards results in a much wider range of wet areas falling under the technical classification of wetlands.

Another source of contention is the one-size-fits-all approach. Section 404 of the Act regulates all wetlands in the same manner, regardless of their relative importance in providing the functions and values attributed to wetlands. Many areas that are considered "wetlands" have little environmental significance, yet receive the same level of protection as pristine wetlands, for example. This uniform regulation of wetlands is in stark contrast to the widely held belief by members of the environmental, regulatory and development communities that some wetlands are more valuable than others, and thus deserve higher levels of protection.

Millions of Acres of Wetlands, Streams at Risk in Supreme Court Case
Conservation, Sporting and Business Groups Weigh In
Published January 12, 2006

Major conservation, sporting, and business groups are weighing in on a potentially sweeping Supreme Court case that could end more than 30 years of Clean Water Act protection for more than half of the nation’s remaining wetlands and countless stream miles, leaving them open to pollution and destruction. At risk are wetlands and streams that flow into larger water bodies.
“It’s like saying that you cannot cut down a tree, but are free to poison its roots,” says Jim Murphy, National Wildlife Federation wetlands counsel, who represents the groups. “Polluters could be halted from dumping waste into large bodies of water while being allowed to discharge pollution into streams, tributaries and wetlands that flow directly into those large bodies of water. Such a ruling by the Court would be an enormous setback for the health of all waters and for future generations that will depend on them.”

The Supreme Court case combines two cases, Carabell v. United States and United States v. Rapanos which are on appeal from the Sixth Circuit Court of Appeals. Both address whether the Clean Water Act protects wetlands adjacent to small tributaries that flow into larger water bodies. The lower court upheld Clean Water Act protection of headwater wetlands and streams. An Army Corps of Engineers analyst has independently estimated that if the lower court ruling is overturned, well over half of remaining U.S. wetlands and streams would lose protection under the Clean Water Act.

Joining the National Wildlife Federation and Ducks Unlimited in an amicus brief to be filed with the Court are the American Fisheries Society, American Sportfishing Association, Bass Pro Shops, Boone & Crockett Club, Izaak Walton League, Michigan United Conservation Clubs, Orvis, Pheasants Forever, The Wildlife Society, Theodore Roosevelt Conservation Partnership, Trout Unlimited and Wildlife Management Institute.

 
The groups are supporting the Bush Administration’s position in the case that Congress intended to protect headwater wetlands and tributaries under the Clean Water Act when it was passed in 1972.

“Reversal by the Court of long-standing Clean Water Act protections for wetlands and streams would be devastating to ducks and countless fish and wildlife species that require these areas to survive,” says Scott Yaich, Ducks Unlimited Director of Conservation Programs.

“Congress passed the Clean Water Act to ensure that future generations of Americans would not inherit lakes that are dead and rivers that can’t support fish or wildlife,” says Murphy. “The lower court properly recognized that the Clean Water Act was intended by Congress to broadly protect America’s waters. If the Supreme Court reverses the lower court findings, it would leave our children a sad legacy of lifeless and polluted wetlands, streams, lakes and rivers.”
The cases involve Michigan wetlands slated for development. In the Rapanos case, the developer began filling in wetlands in three Michigan Counties without a permit. The 54 total acres of wetlands are connected to tributaries that flow into either Lake St. Clair or Lake Huron. The developer was found liable for the wetlands destruction under the Clean Water Act by the Sixth Circuit Court of Appeals. In the Carabell case, the developer wanted to build condo units on 19 acres of land in Macomb County, Michigan, about 15 of which was forested wetlands. The Carabell wetlands are adjacent to a tributary that flows to Lake St. Clair. A permit for the development was issued by the Michigan Department of Environmental Quality, but the Army Corps intervened and ordered the permit be denied. The developer then brought suit alleging the wetlands were not covered by the Clean Water Act.

The combined cases will be heard by the Supreme Court on February 21st.
“We are confident the Court will uphold the intent and authority of Congress to protect our nation’s valuable wetlands and streams from pollution and destruction, for the benefit of wildlife and people” says Yaich.  Section 404 of the CWA can severely restrict the filling of wetlands for development purposes. The conflict between enforcing the Act's water protection provisions and private property rights remains a thorny environmental issue.
 

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