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. The Great Lakes Radio Consortium’s Michael Leland has more:
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. The
Great Lakes Radio Consortium’s Michael Leland has more:
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
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
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
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
“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
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.
For the GLRC, I’m Michael Leland.