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.

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Study: Mtbe Alternatives Pose Similar Threat

The Clean Air Act says gasoline must contain additives to help it burn more cleanly. But the common additive MTBE is a proven environmental threat. And a new study says the alternatives could be just as dangerous. The Great Lakes Radio Consortium’s Corbin Sullivan reports:

Transcript

The Clean Air Act says gasoline must contain additives to help it burn more cleanly. But the
common additive MTBE is a proven environmental threat. And a new study says the alternatives
could be just as dangerous. The Great Lakes Radio Consortium’s Corbin Sullivan reports:


Underground storage tanks at gas stations can leak. Fuel
additives like MTBE leak faster than the gas and can
cause groundwater pollution.


For that reason, seventeen states, including New York,
Michigan and Illinois have restricted or will restrict the use
of MTBE in gasoline.


That means other fuel additives intended to reduce air
pollution will have to be used instead.


Mel Suffet co-authored a new study published in the
journal Environmental Science and Technology.


He says some of the alternatives to MTBE can cause the
same problems.


They can be toxic and can make groundwater
undrinkable. Suffet says to solve the problem, leaks need
to be prevented.


“The first thing you have to do is develop a design of
underground fuel storage tanks to emphasize containment
leak detection and repair.”


Suffet says even modern tanks are prone to leaks. So he
says designers need to go back to the drawing board to
create a leak free tank.


For the Great Lakes Radio Consortium, I’m Corbin
Sullivan.

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The Economics of Recycling

More and more Americans have been taking recycling seriously over the last two decades. So much so that today, the EPA says about 30% of the trash Americans produce in their homes is recycled. And the recycling rate for most Midwest states is near that average, but while the agency expects that number to continue to rise, not everyone thinks more recycling is better for the environment. The Great Lakes Radio Consortium’s Mark Brodie takes a look at the economics of recycling:

Transcript

More and more Americans have been taking recycling seriously over the last two decades. So much so that today, the EPA says about 30 percent of the trash Americans produce in their homes is recycled. And the recycling rate for most Great Lakes states is near that average. But while the agency expects that number to continue to rise, not everyone thinks more recycling is better for the environment. The Great Lakes Radio Consortium’s Mark Brodie takes a look at the economics of recycling.

A small bulldozer collects materials that have sprawled out across the floor of this recycling center…. it then pushes the mound up against a wall. The glass and plastic pile up almost to the ceiling of the building … some ten feet in the air. Welcome to the tipping floor, where workers collect and sort recyclables from the Albany, New York area. Joe Gieblehaus is the solid waste manager for the city. He says Albany officials hope to recycle between 30 and 35 percent of the city’s waste…

“The 30 to 35 gives us I guess the best bang for our buck, basically, recycling is a situation of declining marginal returns. If we try to go after another product in the waste stream, it just costs us more money, and more money, and more money and more money. 30 to 35 seems to give us an economic benefit, the best economic benefit available.”


Albany’s recycling target is similar to that put out by the EPA… and is about the limit that one former EPA assistant administrator says is necessary. Doctor J. Winston Porter was instrumental in starting curbside recycling in the United States in the 1980’s…. but now he says people are taking a good thing too far.

“The last few years, I’ve been somewhat concerned that people are, if anything, aiming too high. You know, I set a 25% goal and there’s nothing wrong with going to 30 or 35 or 40% if you can. But I think many states have set goals of like 50% and I think what we’re doing, we’re getting into an area that’s very non-cost effective and may even hurt the environment because you’re in effect trying to use too much energy and too much processing to recycle too much trash.”


One of those states that’s right about at porter’s limit is Wisconsin. Greg Swanson of the state’s department of natural resources says Wisconsin recycles about 40 percent of its waste. He says the state’s laws call for beneficial re-use. That means the state does not want to spend more energy recycling something than it took to make it in the first place. Swanson says that makes decisions about what to recycle and what not to recycle a little easier.

“You’d like to be able to recycle everything that’s recyclable, but you have to keep in mind the political and economic realities of being able to actually do something with it once you collect it.”


Swanson says that end result is crucial for recycling programs to survive. He says Wisconsin has budgeted more than 24 million dollars for recycling programs this year. That money goes to pay for trucks, drivers, and people who sort the recyclables, among other things. If a state or city recycles something, it has to be able to sell it. If the costs of recycling are higher than the profits from selling the materials, the city or state loses money on the deal. But not everybody believes more recycling hurts the economy. Will Ferrety is the executive director of the national recycling coalition. He says the more Americans recycle, the better it is for both the environment…. and the economy.

“At its fundamental basis, recycling is helping us eliminate the notion of waste because if we can turn what would otherwise be a discarded product into a useful product, we’re making for a more efficient system.”


Ferrety says states should try and recycle as much as possible. He says it’s preferable to many of the alternatives.

“When you look at that entire system, and compare that to what I would call a one-way system where we extract resources, make a new product, use them up, and simply throw them away in a landfill, hands down, there’s less energy used, there’s fewer air pollutants, there’s fewer water pollutants that result from that recycling system when compared to that one way system.”


Among Great Lakes states, Minnesota and New York have the highest recycling rates…at more than 40 percent each of their total waste. The EPA says other Great Lakes states recycle between 20 and 29 percent. Albany, New York’s Joe Gieblehaus says even though many officials on the state and local level would like to recycle more…. the green of the environment sometimes has to take a back seat to the green in the wallet. He says the market drives decisions about whether or not to recycle something. He says the city can only recycle materials that can then be sold to offset the cost of collecting them in the first place.

“There are so few end uses to close the loop; it’s hard for us at the beginning of the loop to find a market for this material…a sustainable market for this material.”


Gieblehaus says his trucks collect about 13 thousand tons of recycled materials a year. He says that’s just enough to help keep the environment green…. without putting the city into the red. For the Great Lakes Radio Consortium, I’m Mark Brodie.