Supreme Court to wade into wetlands debate
Environmentalists, property owners at odds over government’s role

The Associated Press
Oct. 11, 2005


WASHINGTON - The Supreme Court, venturing into legal territory that it historically has avoided, said Tuesday that next year it will hear cases over the government’s authority to regulate wetlands.

Jumping into a subject that is crucial for both environmentalists, property owners and developers, the justices will take up claims that federal regulators have gone too far by restricting development of property that is miles away from any river or waterway.

[SNIP]

Environmental cases have been divisive at the court. In 2002, justices deadlocked 4-4 in a case that asked whether farmers should have more freedom to work in environmentally sensitive areas. In 2001, the court split 5-4 in a ruling that limited the scope of government protection of wetlands, but the decision did not go as far as environmentalists feared.

Three new cases give the court an opportunity to put limits on federal government authority, and a key player may be new Chief Justice John Roberts. The appeals were the first the court agreed to hear under Roberts’ leadership.
[SNIP]
As an appeals court judge, Roberts suggested in 2003 that federal power is limited. He had urged the appeals court to reconsider its decision restricting a San Diego area construction project because it encroached on the habitat of the rare arroyo southwestern toad.

In the Supreme Court cases involving wetlands, Bush administration lawyer Paul Clement, the solicitor general, said the government has long-standing power to protect waterways, even if that means limits on pollution on nearby land.
[SNIP}
In one of [two] cases that will be argued at the court next year, a Michigan man, John A. Rapanos, was convicted of violating the Clean Water Act for filling his wetlands with sand to make the land ready for development. He also lost a civil suit, which is at issue in his appeal.

In a second case, justices will decide if the Army Corps of Engineers had the authority to restrict the development of a condominium in MacComb County, Mich. The government contends the work could pollute Lake St. Clair, which connects Lake Huron and Lake Erie.

[SNIP]

The cases are Rapanos v. United States, 04-1034
Carabell v. Army Corps of Engineers, 04-1384



URL: http://www.msnbc.msn.com/id/9662230/

Johnny,

You sound like a lawyer, do you know what the key issues are in these cases? Rapanos already went to the Supreme Court at least once. This new hearing must be on another issue besides whether or not his property was a wetland. I have never heard of the Carabell case.

Are they arguing the extent of Corps Jurisdiction (ie. too far away from navigable waters) or something else?

Andrew Geffert said:

"...You sound like a lawyer, do you know what the key issues are in these cases?

Dear Andrew,

I am not an attorney but I have experience with wetlands permits.

Five years after issuing its decision in Solid Waste Agency of Northern Cook County [SWANCC] v. U.S. Army Corps of Engineers, the Supreme Court will revisit the issue of the government's authority to protect wetlands that are not adjacent to navigable waters. At issue is the federal government's jurisdiction over inland ditches, streams, and wetlands, that do not abut navigable waters.

After SWANCC, the Corps stopped asserting jurisdiction over isolated wetlands. However, the Corps continued to assert that if a stream or ditch drains through a series of other streams to navigable waters, then federal jurisdiction extends to the farthest upstream ditch because it is a "tributary." Any wetlands located near the tributary are "adjacent" and therefore subject to federal jurisdiction. The Corps uses “hydrology connections” such as the tributary system, 100 year flood plain, and in some cases rain water drainage and ground water, to determine adjacency between wetlands and navigable waters.

Since SWANCC, there have been numerous federal court decisions on the limits of Clean Water Act jurisdiction. Some courts have supported the Corps broad interpretation of jurisdiction over upstream tributaries and wetlands. Other courts do not agree that federal jurisdiction extends upstream to the highest reaches of a tributary system. In Dec. 2003, the Fifth Circuit Court of Appeals ruled in the Needham decision, that federal jurisdiction extends only to non-navigable tributaries that are directly adjacent to an open body of traditional navigable waters. The Needham decision removed federal jurisdiction from non-navigable inland streams, ditches, and wetlands that are far removed from navigable waters.

The Corps has resisted the Needham decision and there has been great discrepancy and inconsistency in the administration of the wetlands regulatory program throughout the Nation. This is one reason why the issue has returned to the Supreme Court. The other reasons include State rights and the constitutional limits of federal regulatory authority.

The Supreme Court accepted two petitions seeking review of decisions by the Sixth Circuit Court of Appeals. The cases are Carabell v. U.S. Army Corps of Engineers (04-1384) and Rapanos v. U.S. (04-1034), and these are the first cases chosen in a Conference led by the new Chief Justice, John G. Roberts. The court will consider the following questions:

1. Does the Clean Water Act prohibition on unpermitted discharges to “navigable waters” extend to non-navigable wetlands the do not even abut navigable waters?

2. Does extension of Clean Water Act jurisdiction to every intrastate wetland with any sort of hydrological connection to navigable waters, no matter how tenuous or remote the connection, exceed Congress’ constitutional power to regulate commerce among the states?

The Corps and EPA opposed the decision of the Supreme Court to hear these cases because the final ruling could redefine the Corps’ jurisdiction throughout America.


http://www.eswr.com/1104/carabellop.pdf Carabell opinion (9/27/04)
http://www.usdoj.gov/osg/briefs/2004/0responses/2004-1384.resp.html Gov't opposition to Carabell
http://www.pacificlegal.org/view_SearchDetail.asp?tid=P...Field=CaseID&iID=257 Pacific Legal Foundation on Carabell

http://www.eswr.com/1204/rapcivpetition.pdf Rapanos petition
http://www.usdoj.gov/osg/briefs/2004/0responses/2004-1034.resp.html Gov't opposition to Rapanos


The Corps will hear oral arguments next Spring, and a decision could be issued as early as next June.

Lets assume that the wetlands in question in these two cases are not regulated. How should we then define the 404 regulated wetlands, and what would be the impact on interstate waters. Also, how do the wetlands involved in these two cases protect interstate waters, and how would filling them harm those waters?

Gary,

You are in Michigan where the state has a strong wetland law and protection program. State law indicates very clearly which wetlands are and are not regulated. The EPA even ceded wetland regulatory authority for interior wetlands and water ways to the state. The Corps doesn’t even have authority over wetlands not adjacent to the great lakes or navigation channels. No mater what is decided in the Supreme Court, wetland regulation in Michigan would not change.

One question I have is why Carabell (or Rapanos) didn’t fight the corps having jurisdiction in the first place. From the little I know of the case, it sounds like the wetland was strictly a state controlled wetland and the Corps doesn’t have jurisdiction because it is in the interior of Michigan. Again, only because the EPA relinquished wetland authority to Michigan, which is not the case in most other states.

This message has been edited. Last edited by: Andrew Geffert,

Thank you to Johnny Stevens for that succinct and incisive summary of the current state of affairs on the federal level, post-SWANCC. And for the links to the cases to be reviewed by the Supreme Court. And the entirely neutral wording of the questions before the court. Nice job.

With the nomination of Sam Alito as the newest Supreme Court justice, it is more likely that this court will reverse Rapanos and Carabell. If so, it would be a major setback for the federal wetlands regulatory program. If Rapanos is reversed, then the Corps' current method of using hydrology connections to assert jurisdiction would be sharply curtailed.

Numerous environmental regulatory programs have relied more on litigaion and less on normal rule making, to define their powers. It is possible that other regulatory programs could unravel as the courts reassert limits on federal regulatory jurisdiction.

This underscores the need for States to take a larger role in wetland protection.

Totally agree with you Johnny. Not only do the states need to take a larger role in wetland regualtion, but the US congress needs to better define the extent of authroity in the laws they make. If the Clean Water Act had better language about the extent of federal authority, this wouldn't be a question for the courts.

Andrew Geffert said:

"...If the Clean Water Act had better language about the extent of federal authority, this wouldn't be a question for the courts..."

I was discussing this issue with an Attorney friend who informed me that concerns about the "extent of federal authority" goes beyond wetlands and the Clean Water Act. Apparently, there are many federal regulations that
exceed what Congress authorized in statutes, or go beyond the authority of the federal government under the US constitution. This includes rules dealing with insurance, drugs, sentencing guidelines, occupational health, transportation projects, zoning, invasive species, etc.

It is interesting that wetlands was chosen by the US Supreme Court to be the benchmark for determining the constitutional boundary of federal regulatory authority.

Ya know, a fellah could get suspicious. I recall that when the EPA's post-SWANCC rulemaking proposal was being considered (since withdrawn by the White House), there was much concern expressed concerning the effect that any new narrow 404 rules could have on the whole CWA, including some of America's favorite environmental protections. The sky was potentially going to fall if 404 was reined-in.

Now, with a looming Commerce Clause review of 404, we are hearing the fear of a threat to much of our favorite social legislation, like the Civil Rights Act, which was based somewhat precariously on a Commerce Clause reach.

It's all a scare tactic. The 404 program (along with the ESA) is quite unique in its private property land-use implications. I doubt there are any far-reaching implications, beyond perhaps the ESA, if 404 has its Commerce "Claws" clipped.

Regarding the upcoming Supreme Court wetlands case, Matt Reed said:

"...I doubt there are any far-reaching implications, beyond perhaps the ESA, if 404 has its Commerce "Claws" clipped..."

Dear Matt,

I can imagine a few far-reaching implications if Section 404 of the Clean Water Act has its commerce "claws" clipped by the U.S. Supreme Court.

Many wetlands, ditches, streams, ponds, and other waters that are currently considered jurisdictional because of tenuous "hydrology connections" to navigable waters, would no longer be protected at the federal level.

Environmental activists and ordinary citizens would be alarmed over the sudden loss of federal wetlands protection.

Wetland consultants and attorneys could lose business.

Developers could develop certain wetlands without a permit, depending on the state.

The problem of invasive species and wetlands mitigation would be minimized due to shrinkage in regulated wetlands and corresponding mitigation requirements.

Wetlands could become an election year environmental debate and compete with global warming and ANWR as a campaign issue. The Republicans could lose the White House and possibly both houses of congress, and this would change the outcome of the global war on terrorism.

Johnny Stevens,

"Hey, Scarecrow, ya wanna play ball?" Nice fireball, Johnny. 404 to Civil Rights? Pffft! Try the Global War on Terror.

Below is a link to the Brief for Rapanos that
was filed with the U.S. Supreme Court on Dec. 2, 2005

http://www.eswr.com/1105/rapanos/rapanosbrfplf.pdf


SUMMARY OF THE ARGUMENT

The “significant nexus” required by this Court to establish
federal jurisdiction over wetlands under § 404(a) of the Clean
Water Act cannot be satisfied by the mere presence of any sort
of hydrological connection. In Riverside Bayview this Court
held § 404(a) extended to “a wetland that actually abuts on a
navigable waterway.” 474 U.S. at 135. And, in SWANCC, this
Court declared the text of the Act does not authorize federal
regulation of “ponds that are not adjacent to” traditional
navigable waters and that Congress’ concern for the aquatic
ecosystem “showed its intent” to regulate those wetlands
“inseparably bound up” with actual navigable waters. 531 U.S.
at 167-68. This Court has never held that § 404(a) applies to
water bodies with a mere hydrological connection to traditional
navigable waters and neither the Act nor the federal regulations
adopt a “hydrological connection” test.

Thus far, this Court has found the “significant nexus”
standard is met where the wetlands abut and are inseparably
bound up with a traditional navigable water. This Court need
go no further. It is undisputed that the wetlands in this case do
not abut a traditional navigable water. Instead, they lie up to
twenty miles away and are connected to traditional navigable
waters only by means of intermittent surface flow through a long
series of natural and manmade conduits. Therefore, these
wetlands are not “bound up” with traditional navigable waters
like the wetlands in Riverside Bayview where it was difficult to
tell where “water ends and land begins.”

In addition to the plain language, the need for a strict
nexus requirement is suggested by the history of the Act. This
Court has already determined that Congress did not intend the
term “navigable waters” to be given “the broadest possible
constitutional interpretation.” Rather, the history of the Act
shows Congress was only exerting “its commerce power over
navigation.” Therefore, CWA regulations covering any wetland
with a hydrological connection to traditional navigable waters,
and purporting to represent the full reach of the Commerce
Clause, cannot be sustained.

Likewise, the express policies and goals of the CWA
indicate Congress intended to address water pollution by a
division of labor between the States and the central government
whereby the States regulate pollution upstream at its source and
the federal agencies regulate pollution downstream in the
navigable waters. According to this Court, Congress did not
intend to intrude into areas of traditional state concern but
exercised its legislative prerogative and chose to “recognize,
preserve, and protect the primary responsibilities and rights of
the States to prevent, reduce, and eliminate pollution” and to
control local land and water use.

Finally, a strict nexus requirement is necessary to avoid the
substantial constitutional and federalism issues raised by the
government’s extreme reading of the CWA. Just as in
SWANCC, the government puts forward a novel Commerce
Clause theory to support its assertion of authority over the
discharge of any fill activity (no matter how insignificant) in a
wetland with any sort of hydrological connection (no matter
how attenuated) to a traditional navigable water. This raises a
significant constitutional question that can only be avoided, as
this Court did in SWANCC, by reading “the statute as written.”

A plain reading of the Act is also warranted to avoid the
significant due process issues raised by the strict civil and
criminal penalties attached to a Clean Water Act violation and
the government’s inconsistent and uncertain jurisdictional
standards. Additionally, federal regulation of “the whole
tributary system of any navigable waterway” impinges on the
States’ traditional power over land and water use just as the
“Migratory Bird Rule” in SWANCC. Had Congress intended to
shift the federal-state framework in this way, it would have
provided a clear statement it intended to do so. But it did not
do so. Therefore, to effectuate the intent of Congress, this
Court should interpret the Clean Water Act to avoid these
constitutional and federalism problems, as it did in SWANCC,
and affirm a strict nexus requirement.

DOJ: Defendants Receive Major Jail Sentences, Pay Restitution for Major Wetlands Criminal Prosecution

12/6/2005 1:13:00 PM


--------------------------------------------------------------------------------

To: National Desk

Contact: U.S. Department of Justice, 202-514-2007 or 202-514-1888 (TDD), Web: http://www.usdoj.gov

WASHINGTON, Dec. 6 /U.S. Newswire/ -- In one of the most significant wetlands criminal enforcement prosecutions in United States history, Robert J. Lucas, Jr.; his daughter, Robbie Lucas; and M. E. Thompson, Jr.; and two affiliated corporations-Big Hill Acres, Inc., and Consolidated Investments, Inc.-were sentenced in the U.S. District Court for the Southern District of Mississippi, the Department of Justice and the Environmental Protection Agency (EPA) announced today.

Robert Lucas was sentenced to nine years in prison followed by three years of supervised release, and will pay a $15,000 fine. Robbie Wrigley was sentenced to 87 months in prison followed by three years of supervised release, and is also required to pay a $15,000 fine. M.E. Thompson was also sentenced to 87 months in prison followed by three years supervised release, and will pay a $15,000.

Big Hill Acres, Inc. was fined $4.8 million and sentenced to five years probation. Consolidated Investments, Inc. was sentenced to 5 years probation and is required to pay a $500,000 fine.

"The defendants in this case defrauded their customers and destroyed wetlands that are critical to the Gulf Coast ecosystem," said Sue Ellen Wooldridge, Assistant Attorney General for the Justice Department's Environment and Natural Resources Division. "This landmark criminal case sends a strong message that corporations and individuals who commit flagrant violations of our environmental laws will be prosecuted vigorously and will face the possibility of lengthy prison sentences."

All five defendants were convicted after trial earlier this year of Clean Water Act violations for illegally filling hundreds of acres of wetlands during the development of a 2,600 acre subdivision on property in Vancleave, Mississippi known as Big Hill Acres. All of the defendants were also convicted of conspiracy and mail fraud for then selling hundreds of home sites on the filled-in wetlands despite warnings from public health officials that they were illegally installing septic systems in saturated soil that would contaminate the property.

"The defendants destroyed valuable wetlands and victimized the residents of Big Hill Acres, who ended up with polluted homes and yards with leaking sewage," said Granta Y. Nakayama, EPA's Assistant Administrator for Enforcement and Compliance Assurance. "This sentence sends a convincing message that those who knowingly violate environmental laws and place the public health and welfare at risk will pay a very heavy price."

"The tireless efforts of the investigators who put this case together are to be commended," said U.S. Attorney Dunn Lampton. "Today's landmark sentence is a direct result of their hard work and dedication."

Robert Lucas and the other defendants developed Big Hill Acres from 1994 through 1999. Beginning in 1996, inspectors from the U.S. Army Corps of Engineers informed Lucas that substantial portions of the property contained wetlands and could not be developed as home sites. The Mississippi Department of Health and other regulatory agencies told the defendants that they were creating a public health threat by continuing to install septic systems in saturated soil that could not support them properly. Despite warnings and cease and desist orders from the Corps and the EPA, Lucas and his associates continued to improperly install systems that did not conform to state health department regulations in lots that they continued to develop and sell.

Most of the land was sold to low and/or fixed-income families. While selling the property, Lucas and several other defendants fraudulently told prospective buyers that the property was completely habitable. More than 600 families moved into Big Hill Acres, within several years, a large number of the septic systems failed, causing raw sewage to seep up from the ground and flow across the development.

A number of the homes in Big Hill Acres also suffered from slow drainage; brown, foul-smelling water backing up into bathrooms, kitchens, laundries and sinkholes; and standing water on the lots with debris rising to the surface.

On June 10, 2004, a grand jury in the Southern District of Mississippi charged Lucas and his associates with a total of 41 CWA and U.S. criminal code violations in connection with their development of the property. On Feb. 25, 2005, following a two month-long trial, a petit jury in Gulfport, Mississippi returned guilty verdicts against all the defendants on all of the Clean Water Act, conspiracy and mail fraud counts.

This case was prosecuted by Senior Trial Attorney Jeremy Korzenik and Trial Attorney Deborah Harris of the Justice Department's Environmental Crimes Section, and by Assistant U.S. Attorney Jay Golden. It was investigated by Resident Agent in Charge David McLeod of the EPA CID Jackson, Mississippi Resident Office and Special Agent Steve Champine of the FBI Pascagoula, Mississippi Office. Assistance from EPA Region IV's Wetlands Section was invaluable for investigating and determining the amount of wetlands impacted. The U.S. Department of Agriculture's Soil Conservation Service was also instrumental in helping to determine the hydric soils onsite.

http://www.usnewswire.com/

Isolated wetlands play a critical role in maintaining species
diversity, a new report says.

As a result of a 2001 Supreme Court decision
(Solid Waste Agency of Northern Cook County
vs. U.S. Army Corps of Engineers, 2001), some wetlands
and other waters that are considered "geographically isolated"
from navigable waters no longer fall under the jurisdiction
of the Clean Water Act. Scientific assessments of the potential
impacts of the court's decision are needed to provide guidance
to the federal agencies, states, tribes and local governments
that will have responsibility for protecting these valuable resources.

Eighty-six threatened, endangered, or candidate species “are
supported by isolated wetland habitats,” NatureServe said Dec.
1 in releasing its report. “This represents about 5 percent of all
plant and animal species currently listed under the Act. A little
more than half of those species are completely dependent on
isolated wetland habitat for their survival.”

“Wetlands that can be considered ‘geographically isolated’
represent a considerable amount of the United States’ ecological
diversity and provide habitat for a considerable portion of the
nation’s flora and fauna,” the report said. “Significant loss of
isolated wetland habitats could seriously affect opportunities for
the survival and recovery of the many rare or endangered
species that depend on them.”

A total of 274 at-risk plant and animal species are supported
by isolated wetlands, with more than one-third (35%) apparently
restricted to these wetland types. At-risk animal species
are even more closely tied to isolated wetlands; more than onehalf
of at-risk animals considered in this study appear to be
obligate to isolated wetland habitats. A total of 86 plant and
animal species listed as threatened, endangered, or candidates
under the Endangered Species Act are supported by isolated
wetland habitats. This represents about 5% of all plant and
animal species currently listed under the Act. A majority (52%)
of these listed species are completely dependent on isolated
wetland habitat for their survival.

The report was prepared to gauge the effect of the Supreme
Court’s SWANCC decision. The high court will hear arguments
on how far the federal government’s jurisdiction extends in the
wetlands arena in February — the first time since the SWANCC
decision in January 2001 that the issue has gotten back to
Supreme Court.

http://www.natureserve.org/publications/isolatedwetlands.jsp


ps: Earthjustice, Sierra Club, Friends of the Earth, Greenpeace
and the National Environmental Trust are opposing the nomination
of Circuit Judge Samuel Alito to the Supreme Court.
“Alito’s views indicate that he would support Commerce
Clause challenges by polluters and developers to public health
and environmental laws that Americans have relied upon for
decades, including the Clean Water Act, the Clean Air Act the
Endangered Species Act, and the Safe Drinking Water Act.”

Environmental Groups Counter Industry Demand for Blank Check to Pollute Waters
Clean Water Act cases in Supreme Court could have far-reaching consequences

January 13th, 2006

Contact Info:
Howard Fox / Joan Mulhern, Earthjustice (202) 667-4500

Washington, D.C.-- A coalition of environmental and public health groups today filed a friend-of-the-court brief in what could be the most important Clean Water Act cases ever to be heard by the Supreme Court. In the brief, the groups argue for continued federal protection of streams and wetlands from harmful pollution in the face of industry petitions asking the Court to eliminate decades of Clean Water Act safeguards for these waters.

“These cases pose the question whether the Clean Water Act regulates any discharges into the great majority of this country’s tributaries and adjacent wetlands—involving not just discharges of dredged or fill material, but also discharges of sewage, sediment and toxic chemicals such as cyanide from factories,” the groups wrote in the brief. A copy of the brief is available here.

Earthjustice, representing American Rivers, Environmental Defense, National Audubon Society, Natural Resources Defense Council, Physicians for Social Responsibility, Sierra Club, Tip of the Mitt Watershed Council and Waterkeeper Alliance, filed the amicus brief on the side of the U.S. government in the two consolidated Clean Water Act cases, Rapanos v. U.S. and U.S. v Carabell, that the Supreme Court is scheduled to hear February 21. Both cases involve proposed commercial developments in Michigan wetlands adjoining streams that are tributaries of the Great Lakes.

These groups join an unprecedented array of local, state, and federal government officials, hunting and fishing advocacy groups, scientists, and others from across the political and policy spectrums who are all filing friend-of-the-court briefs today urging the Court to maintain the longstanding protections offered by the Clean Water Act. This unparalleled collection of interested parties includes four former Administrators of the Environmental Protection Agency and nine members of Congress directly involved in the passage of the 1972 Act and its reaffirmation in 1977. Later today the attorneys general of 34 states plus the District of Columbia, led by the states of New York and Michigan, will also file an amicus brief in support of the Clean Water Act. All expressed strong support of the Clean Water Act’s core safeguard: the requirement to obtain a permit before discharging pollutants into waters of the United States.

In October, the Supreme Court agreed to hear these two cases challenging the definition of federally protected waters. In both cases, the developers (and industrial polluters and others supporting their position) are arguing that they can pollute—even destroy—the waters at issue without a Clean Water Act permit. Indeed, they argue that their right to pollute is protected by the U.S. Constitution.

For three decades the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers have rejected such arguments, and have correctly applied the Clean Water Act’s safeguards equally not only to large waterbodies where boats can travel, but also to tributaries of such waters and to wetlands adjoining those tributaries. These streams and their adjacent wetlands that would go unprotected under the developers and industries’ view of the law are used for fishing, recreation, wildlife habitat, and drinking water supplies, as well as for filtering pollutants and helping prevent floods.

Indeed, protection of tributaries was fundamental federal law long before the 1972 Clean Water Act, dating back at least to the 1899 Refuse Act, which barred discharge “into any navigable water of the United States, or into any tributary of any navigable water from which the same shall float or be washed into such navigable water.” The environmental and public health groups noted that the developers’ arguments would “dramatically shrink federal water pollution permitting back to a narrow geographic scope not seen since the McKinley Administration.”



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