Defining Protected Wetlands Gets Mucky

Developers are feeling encouraged by last month’s US Supreme
Court ruling on wetlands. The High Court was deciding on which wetlands deserve protection under the Clean Water Act. Some say it’s more likely
they’ll get their building permits now. Defenders of the Clean Water Act
think those high hopes are premature. The GLRC’s Tracy Samilton takes
us to the wetland where the fight began:


Developers are feeling encouraged by last month’s U.S. Supreme Court
ruling on which wetlands deserve protection from development under the
Clean Water Act. Some say it’s more likely they’ll get their building
permits now. Defenders of the Clean Water Act think those high hopes are
premature. The GLRC’s Tracy Samilton takes us to the wetland where the
fight began.

Wetlands are supposed to be wet, right? Certainly wetter than this mucky little forest in
a township in Southeast Michigan, surrounded by subdivisions and strip malls. Tim Stoepker
leads the way through battalions of attacking mosquitoes. He points at a big puddle:

“Basically, you have a forested wetland here, with no diversity of plant life because you have
such a thick canopy of trees and you don’t typically have all your wetland,
typical wetland plants on the interior here because of that and because there’s no standing
water, you don’t have any of your aquatic species.”

Stoepker’s business suit trousers are getting streaked with mud but he keeps going. Next stop
is a drainage ditch at the edge of the property. It’s pretty dry:

“Now, if we were to come out here in August or July, I mean, that ditch would even be, there
would be nothing in that ditch.”

Stoepker has represented landowner Keith Carabell since the mid-1980s. Carabell was denied a permit
to build senior condos on his property. He appealed it all the way to the U.S. Supreme Court.
Stoker thinks if the nine Supreme Court Justices had seen this ditch in person, last month’s
wetlands decision would have been different. A majority would have ruled that the test for
Clean Water Act protection is permanent surface water flowing into a navigable water. Even so,
he’s optimistic. Five Justices reaffirmed that the Clean Water Act pertains only to wetlands
with a “significant nexus,” or connection, to navigable waters. He says that’s not the case

“It’s hydrologically isolated from receiving and sending waters.”

But the U.S. Army Corps of Engineers sees it differently. The Corps is the agency that decides
if a wetland falls under the Clean Water Act. If so, it then issues or denies building permits.
The Corps told field officers not to talk to reporters about this or any case pending guidance
from headquarters. But a source familiar with Corps regulations says water from this wetland
does flow into the ditch. From there, it empties into a drain, which dumps into a stream and
then leads to Lake St. Clair a mile away, one of the most polluted bodies of water in the Great
Lakes region. The source says the wetland also connects to the drain on another side of the
property, and it will meet the significant nexus test when the case goes back to the lower

Environmentalists like Jim Murphy of the National Wildlife Federation hope that’s true.
Murphy says small wetlands like this one need to be protected, despite their lack of surface
water and showy aquatic species:

“I think we make a mistake when we just feel that the only thing we need to protect are
charismatic wetlands, for a number of reasons. For one, even wetlands that don’t necessarily look that pretty
that pretty are oftentimes performing enormous functions, whether it be habitat, flood control,
water filtration….”

All functions that Army Corps of Engineers mentioned when it denied a permit in this case.
Murphy says the looming question now is, how will the agency react to the ruling? If they pull
back, he thinks we will lose wetlands at a much quicker pace. Or the Corps could interpret
the ruling as broadly as possible:

“We feel that if the Corps is willing to stand firm and be aggressive, that they can still
maintain protection for a good number of waters.”

Murphy thinks even at best, the Supreme Court ruling will encourage even more developers like
Keith Carabell to challenge permit denials in court. That may be true, but Tom Stoepker, the
attorney for Keith Caraball, says all that most developers want are more thoughtful decisions
from the Corps, and they want the Corps to back off from places it ought not to be. He says
that includes this wetland where anyone can see the water in it isn’t going anywhere.

For the GLRC, I’m Tracy Samilton.

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