US Supreme Court Decisions Devastate Wetlands
Updates Below
Settlement reached
in dispute over wetlands in Michigan
Developers must pay, restore mid-state
land
BY ED WHITE
ASSOCIATED PRESS
Published December 30,
2008
The federal government announced a settlement Monday in a decades-long dispute over wetlands and development in Michigan's Midland and Bay counties, a case that landed in the U.S. Supreme Court.
John Rapanos and other defendants have agreed to pay a $150,000 penalty. The deal requires him to construct 100 acres of wetlands and buffer areas in Midland and Arenac counties to make up for 54 acres that were filled in.
Separately, an additional 134 acres will be preserved in Midland County, with the State of Michigan holding a conservation easement. The agreement was filed in federal court in Detroit and will be open to public comment for 30 days.
"We are pleased to reach a settlement that so strongly benefits the environment and serves the public interest," Assistant Attorney General Ronald Tenpas said in a statement.
Rapanos, 73, did not admit wrongdoing.
"I don't want to characterize things as victories or defeats. ... Neither side walks away with everything they want," his lawyer, Arthur Siegal, said. "If they did, it wouldn't be a settlement."
Rapanos began tangling with regulators in the late 1980s as he attempted to develop homes and a shopping center. He filled in a portion of one property with sand, defying cease-and-desist orders and insisting it had no wetlands or none under federal jurisdiction.
The nearest navigable waterway is a Lake Huron tributary river about 20 miles away, but regulators said adjacent ditches provided a direct surface link.
The government filed a lawsuit in 1994, accusing Rapanos of violating the Clean Water Act. A judge said the government had jurisdiction over three of the six parcels and that the developer had filled in wetlands.
But in 2006 the Supreme Court sent the case back to Detroit for another look, saying regulators might have exceeded their authority in preventing Rapanos and another landowner from developing their properties.
That ruling ultimately led to the 32-page settlement. A message seeking comment was left with Rapanos.
In a separate matter, he was sentenced to 3 years of probation and a $185,100 fine for a 1995 ruling in which a federal jury found him liable for environmental violations. Prosecutors wanted 10 to 16 months in prison.
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United States House of Representatives Oversight and Government Reform Committee Chairman Henry A. Waxman and Transportation and Infrastructure Committee Chairman James L. Oberstar wrote to President-elect Obama regarding their investigation into the drastic deterioration of the Clean Water Act enforcement program.
�One of the legacies of the Bush Administration is its failure to protect the safety and health of the nation�s waters,� said Chairman Waxman. �Our investigation reveals that the clean water program has been decimated as hundreds of enforcement cases have been dropped, downgraded, delayed, or never brought in the first place. We need to work with the new Administration to restore the effectiveness and integrity to this vital program.�
New internal documents obtained by the Committees show that hundreds of Clean Water Act violations have not been pursued with enforcement actions. Dozens of existing enforcement cases have become informal responses, have had civil penalties reduced, and have experienced significant delays. Many violations are not even being detected because of the substantial reduction in investigations. Violations involving oil spills make up nearly half of the Clean Water Act violations that have been detected but are not being addressed.
EPA refused to produce hundreds of documents to the Committees and redacted many of the documents it did produce. EPA concealed the identity of corporations and individuals accused of polluting waters and the specific waters that may have been affected.
In addition, the Committees� investigation revealed that the Assistant Secretary for the Army for Civil Works placed the interests of corporate lobbyists over the scientific determinations of career officials in making Clean Water Act decisions about the Santa Cruz River in Arizona.
�This Administration has only exacerbated a series of bad Supreme Court decisions by not enforcing the Clean Water Act and by placing development interests above those of the public,� said Chairman Oberstar. �By withholding relevant information and misleading Congress our nation�s waters have gone unprotected for too long. Only through congressional action can we restore necessary Clean Water Act protections to our nation�s waters.�
Documents and Links
"The Conclusion Is Unsound" by Carl Pope, Sierra Club
A deeply divided US Supreme Court, on June 19, 2006, threw federal protection for headwaters streams and wetlands into chaos. Four judges ruled that the existing regulatory structure was sound, and that two Michigan developers had violated the Clean Water Act. Four judges, including Bush's two appointees, Justices Roberts and Alito, wrote a plurality opinion denying the federal government the right to protect such streams, an opinion that one environmental lawyer characterized as "strikingly sweeping and remarkably disdainful ... of the Clean Water Act." But the ninth Justice, Anthony Kennedy, filed a separate opinion.
Justice Kennedy, while concurring with Justices Scalia, Thomas, Alito and Roberts that the lower court needed to revisit its decision that the developers in this case had broken the law, also said that the Scalia opinion was "unsound" in concluding that intermittent streams, which dry up in the summer, could not be protected under the Clean Water Act. The dissenters, led by Justice John Paul Stevens, had said that the government has a long-established authority to protect the environment. "The importance of wetlands for water quality is hard to overstate," Stevens wrote. Kennedy's comment supported Stevens -- "the dissent is correct to observe than an intermittent flow can constitute a stream."
It's not surprising that analysts do not know what to make of this ruling. Ducks Unlimited wrote "Supreme Court Decision Bad for Wetlands, Hunters and Anglers," the San Francisco Chronicle's headline writer claimed "Supreme Court Affirms Wetlands Protections," CNN said " High court splits over wetlands protection," and the Washington Post concluded the "US court fails to decide wetlands regulation issue."
Even Chief Justice Roberts, who wrote with the plurality, lamented that the "lower courts and regulated entities will now have to feel their way on a case-by-case basis." This decision creates a legal situation that will lead to endless administrative proceedings and legal challenges in the lower courts. The good news is that five of the nine justices recognized the incredible importance of protecting our nation's wetlands and other waters and rejected the narrow interpretation of the Clean Water Act as put forth by Justices Scalia, Thomas, Alito, and Roberts. And, fortunately, the narrow and divided court decision provides the perfect opportunity for Congress to fix the problem. This would be a good time to pass the Clean Water Authority Restoration Act (HR. 1356 & S. 912) and reaffirm that the Clean Water Act is intended to provide the broadest possible protection for our nation's waters.
Here's another good synopsis of the reaction to the Court's decision on wetlands:
Troubled waters ahead: the US Supreme Court issued a fractured decision today which could call into question the landmark 1972 Clean Water Act.
The CWA, as it is known, was developed to attack the release of toxic chemicals and substances into American waterways. While the act has been largely successful, industrial and agricultural runoff still renders millions of acres of wetland unsuitable for fishing and swimming.
But a narrow majority of the Court thinks the CWA has gone too far in prohibiting wetland use by landowners. It sent the case of two Michigan developers back to a lower court for further deliberation. That's a green light for lower benches to introduce more flexible interpretations of the CWA's voluminous statutes, particularly as they regard wetlands not immediately adjacent to navigable waters.
Environmental groups reacted to the SCOTUS ruling with concern. Earthjustice -- formerly the legal wing of the Sierra Club -- called on Congress to affirm its support for the Clean Water Act, calling it one of the nation's premiere environmental laws. The Audubon Society warned that the ruling will create chaos in the protection of the America's waters, while signaling �an environmentally unfriendly direction� in the new Supreme Court. American Rivers, which was party to an amicus brief supporting the CWA, said today's ruling muddies clean water protection and leaves the Court one vote short of a massive rollback of environmental protections.
Lawmakers may act to clarify some of the ambiguities in the law cited by today's Court. But with the judicial branch increasingly packed with judges who made their legal bones representing monied corporate interests and Congress reduced to single-party rule, the only oil likely to still these waters is the kind which leaves a toxic sheen.
URL Source: http://paperfrog.com/blog/archives/000624.php
Tom Toles of the Buffalo News (and now with the Washington Post) created this great political cartoon in January 2001 in reaction to the devastating 5-4 Supreme Court decision concerning nicknamed "SWANCC". This ruling opened the door to taking protection away from some isolated wetlands in states lacking wetland laws. New York, however, does have laws in place protecting all wetlands greater than 12.4 acres in size.
George W. Bush responds in 2003 to criticism over his proposed weakening of Clean Water Act protections in light of the US Supreme Court 2001 decision
A Chicago newspaper carried the following editorial about the original Supreme Court decision:
Chicago Daily Herald Reports
Posted on January 11, 2001
By Burt Constable
The roadside signs along the Bluff Spring Fen west of Bartlett warn: "Penalty for dumping on public highways."
The Supreme Court says the spot for dumping tons of garbage is inside that pretty little wetland forest with the ponds and the herons and the egrets and such.
Just because some migratory birds nest and breed in those wetlands does not mean the Army Corps of Engineers has the right to prevent that fen from becoming a garbage landfill the size of Woodfield Shopping Center, the court ruled Tuesday in a 5-4 decision.
"It's just outrageous that this kind of thing can happen in this day and age," sighs legendary Kane County environmentalist Dick Young.
Wednesday, when Young should be basking in the new honor of having a county forest preserve named in his honor, the 75-year-old crusader instead worries about what a garbage landfill would do to the delicate balance of nature he's spent his life protecting.
Young's longtime buddy, the Zorro-esque environmental avenger known as the Fox, doesn't hesitate to label the Supreme Court's ruling the work of "idiots" and "morons."
"C'mon, give us a break," the Fox pleads during a telephone interview. The Fox, who has been waging war with polluters since he created his clandestine identity in the 1960s, says he can tolerate the "exploitation" of nature, "but this is rape."
With the setting sun casting a pink glow over the snow-covered fen as the moon rises full and orange in the east, the fen looks to be a spot worthy of preserving just for the view.
But it really is just an old gravel pit with a few isolated ponds and mudflats not worthy of federal protection, the Supreme Court ruled.
During the half-century that the abandoned gravel pit has been allowed to grow into a fen with diverse flora and fauna, it has become more essential than it might seem to the uninformed, Young says.
Draining those wetlands to store bales of compacted garbage "would affect the high-quality fens around it," Young argues. "It's the implications of what happens to all the areas that depend on that aquifer."
Young notes the Supreme Court ruling didn't say the fen would be a dandy spot to dump garbage. It simply dealt with legal jurisdictions and state rights vs. federal rights.
The Illinois Environmental Protection Agency still could move to protect the fen and deny the landfill, Young says.
For the state's environmental agency to allow the landfill would be "cowardly," the Fox adds.
Since the birth of the federal Environmental Protection Agency in 1970, the United States has passed laws to protect wetlands. Thirty years ago, the U.S. was losing 458,000 acres of wetlands a year to developers and farmers. In 1997, that number had plunged to only 58,500 a year, according to an Interior Department report released Tuesday.
"You have to remember we don't have that much land to give away anymore," the Fox quips. The government says we have 105.5 million acres of wetlands left.
While President Clinton recently has gone on an environmental binge to protect forests and wetlands, the George W. Bush administration might not share those same concerns.
"When environmental concerns and economic concerns clash, the environmental concerns always lose," warns the Fox.
Coupling those fears with this newest Supreme Court decision can rekindle memories of life before the government first moved to protect the environment.
Young remembers those days.
"We do not," he says, "want to turn the clock back."
Wisconsin is the first U.S. state to respond to the Supreme Court decision that eliminated federal jurisdiction over isolated wetlands (HW #208, #209, #211). On May 7th, 2001, Gov. Scott McCallum signed consensus legislation that will restore protection to over 1 million acres of Wisconsin�s wetlands. Congratulations Wisconsin!
By Traci Watson-- USA TODAY - December 2002
MYRTLE BEACH, S.C. � Thousands of acres of wetlands across the country are being bulldozed or filled with dirt because of a 2001 Supreme Court decision that stripped them of federal protection.
Millions of acres more are still vulnerable. When these swamps and bogs vanish, so does their capacity for preventing floods, cleansing water of pollutants and sheltering waterfowl and fish.
The wetlands singled out in the court decision are "isolated," that is, no channel connects them to a larger body of water. Wetlands are too unstable to support heavy structures. So a developer must fill a wetland with dirt, destroying it, before building on top of it.
"You're seeing a lot of good, isolated wetlands being filled and drained without permits," says Richard Mogensen, manager of Marsh Resources Inc. in Mooresville, N.C.
Many of these isolated wetlands are located in rapidly growing areas of the country. Developers, who want to build houses and shopping centers, say that federal officials too often consider ditches and other small areas to be isolated wetlands and that these are not that valuable to the environment.
The fate of isolated wetlands is nearly undocumented. Acres are disappearing fastest where state wetland laws are weakest and where the Army Corps of Engineers uses the broadest definition of "isolated." Most are in the Midwest or the South:
- Illinois. A shopping center in Lansing was expanded on top of 13 acres of isolated wetlands.
- Utah. Developers drained and filled in a 4-acre isolated wetland to make way for a subdivision in Ogden. Biologists say any kind of wetland is rare and valuable in such an arid state.
- Nebraska. The local office of the Army Corps worked for seven or eight years to work out a deal with developers to protect a wetland in Ralston. Soon after last year's Supreme Court ruling, the developers filled much of it to build shops, offices and housing for the elderly.
South Carolina may offer the clearest example of the issue. The Southern Environmental Law Center, an environmental group, obtained federal records on the state's wetlands through the Freedom of Information Act.
From the court's decision on Jan. 9, 2001, through Sept. 3, 2002, federal regulators in South Carolina declared 237 wetlands isolated and unprotected by federal law. Those wetlands cover nearly 1,100 acres. No group or state agency tracks the fate of those 237 wetlands. But examination of individual cases shows that some have been destroyed. Others are scheduled to be filled or altered. The development of others is on hold because of the economic downturn.
South Carolina imposed new restrictions on developers after the high court's decision. At least five states did the same, or tried to. But most have failed in the attempt or, like South Carolina, are facing court challenges. The results, many biologists say, will be devastating, especially as more landowners learn of the decision.
Developers and farmers have long argued that federal regulators overstep the law in protecting wetlands. Last year, the Supreme Court agreed with them.
The court ruled in a 5-4 decision that the federal government had no authority to regulate isolated wetlands set to become a dump in Cook and Kane counties, Ill.
Federal lawyers' interpretation of the Clean Water Act "would result in a significant impingement of the States' ... power over land and water use," the justices wrote.
"It was the first step in saying to the Corps of Engineers, 'You have no authority over this,' " says John Cone of the Home Builders Association of South Carolina. "They simply said this is something the states need to deal with."
The decision toppled the lone national hurdle to filling wetlands that occupy millions of acres.
"The very day (the decision) hit the press, I was driving from Galveston to Houston, and I counted no less than six huge tracts of land where bulldozers were knocking everything down," says James Jones, a senior consultant with a wetlands firm and a former wetlands regulator. "And they hadn't been developed because there were isolated wetlands in them."
Before the court ruling, a landowner who wanted to fill an isolated wetland had to apply to the Army Corps for a permit. The Army Corps would usually grant one with two conditions:
- Developers had to minimize the amount of wetland destroyed.
- Developers had to build or restore other wetlands in place of those blotted out.
But the 2001 ruling allowed builders to do as they please with isolated wetlands in places where there were no state laws. Many landowners who think they have isolated wetland on their property no longer contact the Army Corps. They just dump dirt in them. That's legal, thanks to the court ruling.
If landowners want to be careful, they'll ask the Army Corps to confirm that the wetland on their property really is isolated. If it is, the Army Corps issues what's called a "non-jurisdiction" letter. This type of letter states that the Army Corps has no authority over the wetland. It's impossible to know how many acres of wetlands have been put out of federal regulators' reach because landowners aren't required to report their isolated wetlands to the Army Corps. Many Army Corps districts don't keep track of how many non-jurisdiction letters they send out.
One exception is the Army Corps' Charleston district office, which oversees South Carolina. The state has more than 300,000 acres of isolated wetlands � and a population that surged 14% from 1990 to 2000.
Two-thirds of the 237 wetlands that earned non-jurisdiction letters are in three fast-growing counties: Beaufort County includes Hilton Head. Charleston County includes the city of Charleston. Horry County includes Myrtle Beach.
A few miles from downtown Myrtle Beach, federal biologist Prescott Brownell pushes through a thicket of brush and tree limbs. He seems as happy here among the thorns, mud and mosquitoes of a Southern swamp as he would be sitting in his own living room.
"Want me to forage ahead and break the bushes down?" he calls out. "I'm pretty good at making a bear path."
Brownell, who works for the National Marine Fisheries Service, points out the various plants that identify this mucky woods as a wetland: Royal fern. Pond pine. Red bay. The only sound is the twitter of a hidden songbird.
This is a bay-forest type wetland, Brownell says. He admits it's not much to look at. But this wetland and others, he says, will filter out water pollution, absorb floodwaters and send nutrients to estuaries, which are rich with fish.
To the Army Corps, these 10.5 acres of wetlands are isolated. So last year, the Corps issued a non-jurisdiction letter to the developer that owns the wetlands and the surrounding land.
The developer hasn't finalized plans for the 215-acre site. But most of the isolated wetlands will probably be incorporated into a golf course. They won't be destroyed, a spokesman says, but the trees there might be thinned.
The other isolated wetlands could have houses built on them. But the developer would preserve more than an acre of wetlands elsewhere for every acre it develops, as the state requires.
"It's not a matter of developers going in willy-nilly and being able to do as they please," says Pat Dowling, spokesman for landowner Burroughs & Chapin.
Other isolated wetlands in South Carolina that are or were threatened by development:
- A 1.67-acre swamp in the Horry County city of Conway is up for sale. The U.S. Fish & Wildlife Service advised the Army Corps not to grant a wetland permit because the wetland's destruction would affect the Waccamaw River. But the wetland is isolated. So when the Supreme Court decision was published, the Army Corps lost jurisdiction. That makes the land more attractive to buyers.
- About 2 acres of wetlands were filled to upgrade the Charleston International Airport. Developers applied for a federal permit, then learned they wouldn't need one because of the Supreme Court decision. Federal biologists say the wetlands' destruction will likely have an impact on the Ashley River, which is less than 5 miles away.
For the moment, South Carolina regulates isolated wetlands. Environmentalists say that the state does a good job of protecting larger wetlands but not smaller ones. State officials acknowledge that's a valid criticism.
But local developers have challenged the state's legal authority to regulate isolated wetlands of any size. The state Supreme Court is expected to issue a ruling in 2003.
Since the Supreme Court ruling, a few states have taken action. Wisconsin took the most drastic step, passing a wetland-protection law four months after the Supreme Court ruled.
Illinois has no state law, but it spent $21 million to buy the wetlands that sparked the court case. They were due to become a dump. Now they'll be part of a state preserve.
Even so, isolated wetlands are still at risk in most other states.
Developers have filed suit against several states, including Indiana and Virginia, for their efforts to protect isolated wetlands. Some state legislatures won't grant regulators the power or the cash to do the job.
Many federal biologists and wetland officials working across the USA are blunt about the importance of isolated wetlands.
"Isolated wetlands perform the same basic public-interest functions as do (other) wetlands," says Bobby Riggs, head of the regulatory branch of the Army Corps' Charleston office. "So certainly they deserve as much protection under the law as other areas." He adds that's his personal opinion, not that of the Army Corps.
At the Army Corps headquarters in Washington, officials decline to say that isolated wetlands are important. They say it's impossible to make such a generalization because wetlands differ so much.
That answer dismays environmentalists. "It doesn't take a rocket scientist to know that many types of isolated wetland are extremely important for all the functions they provide," says Daniel Rosenberg, of the Natural Resources Defense Council. "I don't know why that's so difficult for anyone at the Corps to acknowledge."
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