Supreme Court to Hear Landmark Wetlands Case

  • The U.S. Supreme Court is hearing a case that will determine how much power the federal government has over isolated wetlands - wetlands that aren't adjacent to lakes or streams. (Photo by Lester Graham)

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:

Transcript

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
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.


For the GLRC, I’m Michael Leland.

Related Links

Combating Inland Invasives

  • Eurasian Watermilfoil is one of the non-native species that has invaded inland lakes. (Photo courtesy of National Park Service)

Invasive plants, fish and other creatures are threatening many inland lakes. Environmentalists and property owners are trying to stop the spread…before the invaders dramatically alter the smaller bodies of water. The Great Lakes Radio Consortium’s Ann-Elise Henzl reports:

Transcript

Invasive plants, fish and other creatures are threatening many inland
lakes. Evironmentalists and property owners are trying to stop the
spread…before the invaders dramatically alter the smaller bodies of
water. The Great Lakes Radio Consortium’s Ann-Elise Henzl reports:


It’s strange to think that plants and animals from Europe, Asia and Africa
are living in small lakes in the Midwest. Boaters have taken invaders
there…after picking them up in the Great Lakes.


The big lakes are home to more than 160 aquatic invasive species,
including Eurasian Watermilfoil. The stringy plant grows in thick
clusters that get up to 12 feet tall.


“I have seen lakes where if you fell out of the boat in these massive
weeds and you weren’t wearing a life jacket, I don’t care how good a
swimmer you are, you would sink. You can not struggle your way
through these thick entanglements of weeds.”


Ted Ritter leads an effort to reduce aquatic invasive species…in
Wisconsin’s Vilas County.


(Sound of pontoon motor)


On one afternoon he takes his pontoon boat on a lake that had an
infestation of Eurasian Watermilfoil.


“It is a very aggressive plant and it has no natural predators to control its
growth, it grows up to two inches a day.”


When Eurasian Watermilfoil finds conditions it likes, it takes over
quickly. A piece as small as two inches can break off, and float away to
create a new plant.


Eurasian Watermilfoil is widespread in northern Michigan… northern
Wisconsin and other places. It’s one of dozens of aquatic invasive
species on the move in the region.


One of the worst invaders is zebra mussels. They can ravage a lake’s
ecosystem.


(Sound of motor boat)


So far, they’ve made it to just one lake in northern Wisconsin. Mike
Preul with the Lake Superior Chippewa scuba dives there, to count the
mussels. Three years ago, he found 7 adults per square meter. This year,
he counted more than 14-hundred:


“They’re still increasing. What they’ve seen in other systems is that just
like with any other exotic species they’ll come in, the population will
explode, they’ll kind of eat themselves out of house and home, and then
they’ll come down to a level and reach a steady state.”


No method has been discovered to get rid of zebra mussels, but there are
ways to control some invaders.


Herbicides can be used to kill Eurasian Watermilfoil, and some property
owners chip in to buy aquatic insects to kill the plants.


Les Schramm did that on his local lake:


“As the larvae hatches it burrows into the stem of the Eurasian
Watermilfoil and sort of eats out the center vascular part, and it falls over
and dies.”


People fighting aquatic invasive species say it’s like fighting weeds in a
garden — the work never stops and it can be expensive.


Ted Ritter of Vilas County says it costs thousands of dollars to treat a
lake once. So, often people do nothing.


Ritter says that can hurt the environment. He says it can also threaten the
economy, in areas like northern Wisconsin that rely on tourism.


Ritter says the invaders can reduce the appeal of a lake. He mentions a
plant called “curly leaf pondweed.” When it dies in the middle of
summer, it creates algae blooms that look like slimy green pillows:


“When people arrive at resorts and they look out and they see that very
unappealing lake they say ‘I’m not staying here,’ and they go somewhere
else. When realtors bring prospective buyers out to look at a property,
people get out of their car and they go right to the lake and they say ‘oh
my, I’m not even interested in looking at the house. This lake is
horrible.'”


Because it’s so difficult to control invasive species, Ritter and others
fighting the invaders focus on prevention.


Local volunteers and workers from the Wisconsin Department of Natural
Resources spend hours at boat landings. They urge people to clean their
boats, trailers, and fishing gear thoroughly when going from lake to lake,
that can keep unwanted plants and creatures from traveling along.


For the GLRC, I’m Ann-Elise Henzl.

Related Links

Supreme Court to Hear Beach Walking Case?

Shoreline property owners are asking the nation’s highest court to reverse a ruling that says the public has the right to walk along the beaches of the Great Lakes. The Great Lakes Radio Consortium’s Rick Pluta reports:

Transcript

Shoreline property owners are asking the nation’s highest court to
reverse a ruling that says the public has the right to walk along the
beaches of the Great Lakes. The Great Lakes Radio Consortium’s Rick
Pluta reports:


The property owners are challenging a Michigan Supreme Court
decision. The state court held that the public owns the Great Lakes
beaches from the water to the high water mark. The case was filed by a
woman who was seeking the right to walk along the shoreline of Lake
Huron.


David Powers is an attorney with the property owners group Save Our
Shoreline. He says the Michigan decision rolled back property owners’
rights…


“And so, if the state has taken private property in violation of the
Constitution, the U.S. Supreme Court should be very concerned about
that.”


The other side in the case says the Great Lakes shoreline is such a unique
resource that no one person should be allowed to claim exclusive rights
to it.


There’s no word on when the Supreme Court might make a decision on
taking the case. Lakeshore property rights are being litigated in other
Great Lakes states and whatever the Supreme Court decides to do could
have an effect on those cases.


For the GLRC, this is Rick Pluta.

Related Links

Supreme Court to Consider Wetlands Cases

The U.S. Supreme Court will hear two cases involving the government’s authority to regulate wetlands. The cases question whether federal regulators have jurisdiction over wetlands that don’t directly connect to rivers or other waterways. The Great Lakes Radio Consortium’s Erin Toner
reports:

Transcript

The U.S. Supreme Court will hear two cases involving the government’s authority to regulate wetlands. The cases question whether federal regulators have jurisdiction over wetlands that don’t directly connect to rivers or other waterways. The Great Lakes Radio Consortium’s Erin Toner reports:


In both cases, property owners in Michigan argue that since wetlands on their land don’t drain into or abut any navigable waterways, they aren’t protected under the Clean Water Act.


One of the landowners faces millions of dollars in fines for filling in his wetlands. Howard Learner is executive director of the Environmental Law and Policy Center. He says the Supreme Court could consider whether parts of the Clean Water Act are constitutional.


“This is a case in which you could see some justices wanting to limit the degree of wetlands protection, while other justices would want to reaffirm the wetlands protection that the Court of Appeals has found appropriate here. It’s a hard court to predict.”


Learner says the Supreme Court has been divided on similar issues in the past. Lower courts have ruled in these cases that the federal government acted appropriately in seeking to protect the wetlands.


For the GLRC, I’m Erin Toner.

Related Links

New Lakeshore Wetlands: Nuisance or Asset?

  • Terry Miller, of the Lone Tree Council, is one of the few Bay City residents trying to protect wetlands sprouting up along the beaches of Saginaw Bay. Many of his neighbors prefer beaches with less vegetation. Photo by Steve Meador.

With water levels below-average in the Great Lakes, emergent wetlands are flourishing in many large, protected bays. This thick vegetation, a few hundred yards wide at most, fringes the shoreline of exposed lakebeds. Scientists and government officials say emergent wetlands are valuable resources worth protecting. Others say the vegetation is a nuisance and want it destroyed. The Great Lakes Radio Consortium’s Steve Meador has more:

Transcript

With water levels below-average in the Great Lakes, emergent wetlands are flourishing in
many large, protected bays. This thick vegetation, a few hundred yards wide at most,
fringes the shoreline of exposed lakebeds. Scientists and government officials say
emergent wetlands are valuable resources worth protecting. Others say the vegetation is
a nuisance and want it destroyed. The Great Lakes Radio Consortium’s Steve Meador
has more:


There’s a dull gray sky over Saginaw Bay, a large, shallow arm of Lake Huron. A brisk
wind blows off the bay toward Bay City State Park.


“This is the area that bathers come to in the summer, and as you can see, there is only a
small portion of the beach left, that much of the rest has reverted to fairly high levels of
vegetation…cattails…bulrushes… lots of vegetation.”


Terry Miller heads an environmental organization in Bay City called the Lone Tree
Council. These days, Lone Tree is an appropriate description of Miller. He’s one of the
few locals trying to protect emergent wetlands. These wetlands remain mostly out of
mind during cycles of high water. However, with Lake Huron near its lowest level in
decades, thin bands of emergent wetlands now flourish along the shores of Saginaw Bay.


Scientists call these wetlands some of the most productive in the country because they
provide critical habitat for fish and birds. Yellow perch and northern pike use them as
breeding areas, and waterfowl feed and nest there. The wetlands also reduce coastal
erosion by anchoring shoreline sediment during storms.


Terry Miller sees the value of emergent wetlands and is fighting to protect them. He also
accepts that some people are less concerned with how wetlands benefit an ecosystem than
they are with clean, sandy beaches or an unobstructed view of Saginaw Bay.


“As you can see, some of this vegetation is taller than we are, and if you’re a homeowner
sitting back in your coffee hutch looking out and not seeing water but greenery, some
may find that pleasant, but more than likely they would prefer to see the water.”


One local resident who doesn’t like the wetlands is Ernie Krygier. He says the vegetation
reduces property values and prevents access to the water. Worst of all, he says it ruins
sandy beaches, like the one at Bay City State Park.


“This park used to be just jammed, you see all the parking lot space that’s out here, you
couldn’t find a spot back when we had beaches. Now you could shoot a gun through here
and not hit anybody.”


Krygier wants the vegetation along the park’s shoreline removed. He says the place for
wildlife is in the nearby Tobico Marsh, away from park users.


“This is where people belong, that’s where nature belongs.”


Krygier’s issue with the park is part of a larger conflict with government regulators that
also involves private property. The dispute has been dubbed the “weed war” by a
property rights group called Save Our Shoreline, or SOS, that Krygier heads up.


SOS members say they have the right to remove vegetation below the ordinary high
water mark. That’s land the state and federal government says is publicly-owned
bottomland. Government regulators protect this land by requiring permits for
mechanized activities like plowing or grading. This helps preserve the dense root mat
that anchors the shoreline.


Some less destructive techniques for controlling vegetation are allowed without a permit,
including mowing, weed-whacking, and hand-pulling vegetation. Nevertheless, many
property owners have used tractors and other heavy machinery to destroy vegetation on
public land without a permit. Government regulators say this is a violation of the Clean
Water Act. They’ve sent “cease and desist” letters to many property owners, including
one state legislator.


Krygier’s main contention is that property owners have ownership rights to the water’s
edge.


“The government, the state of Michigan wants to take ownership of our property, and that
is wrong. We feel we have the law on our side.”


Some law experts say Krygier’s interpretation is wrong. Chris Shafer is a professor at
Thomas M. Cooley School of Law in Lansing. He’s had some experience in this area.
He ran the Great Lakes Shorelands program for the Michigan Department of Natural
Resources for more than 15 years.


“I think the law is real clear on this, that all of the land we’re talking about below the
ordinary high water mark on the Great Lakes is owned by the state of Michigan. It’s held
in trust for all nine million citizens of Michigan.”


Shafer says that while property owners have some legitimate concerns, they don’t own
the land out to the water’s edge as they believe. They have a right to access the water, but
no right to destroy vegetation on public land.


Shafer says that, unlike the sand dune shores of Lake Michigan, it may be unrealistic to
expect sandy beaches throughout Saginaw Bay. Dr. Thomas Burton agrees. He’s a
professor of fisheries and zoology at Michigan State University who studies wetland
ecosystems.


Burton says emergent wetlands have always been an important part of Saginaw Bay, and
that they naturally grow and recede as water levels fall and rise. He says wetlands are a
vanishing resource along the Great Lakes, and that the small portion of coastline that’s
not sandy beach should be protected. Burton says property owners are missing the bigger
picture.


“To call it a ‘weed war’ to me is very short sighted, and really says that the person doesn’t
either, A. understand the importance of these wetlands, or B. they just don’t care about
nature at all, and are willing to destroy it just so they have a sandy beach in front of their
house, and my own opinion is that that’s a pretty lousy way to look at nature.”


Back in Saginaw Bay, Terry Miller says his crusade to protect emergent wetlands is a
lonely one, especially when neighbors tell him he’s one of the most hated people on the
beach. He says these wetlands are held in the public trust to benefit everyone who uses
the bay, and hopes that some day the effort expended by property owners will be
redirected.


“And the sad thing, the thing that I find very frustrating is that, from an environmental
perspective, our Saginaw Bay is hurting. There are a host of environmental problems that
this energy could be directed at, but it’s not.”


For now, property owners are putting their energy into changing state law. A bill before
the Michigan legislature backed by SOS would allow unpermitted destruction of wetland
vegetation on publicly-owned lands.


For the Great Lakes Radio Consortium, I’m Steve Meador.