Nation's High Court To Review Wetlands Cases

On Oct. 11, the U.S. Supreme Court agreed to review three cases involving the federal government's authority to regulate wetlands.

At issue in two of the cases is developers' right to alter wetlands that drain into the navigable waters of the United States, even if those navigable waters are miles from the developments in question. The third case concerns the breach of state-imposed water-quality conditions.

Rapanos vs. United States (No. 04-1034): This case involves a 70-year-old Michigan man who filled in wetlands on his property without a permit from the U.S. Army Corps of Engineers. He was hit with a prison sentence and fines, and he took his case to the U.S. Supreme Court. The high court overturned Rapanos' conviction and asked the Court of Appeals to reconsider the case in light of its decision in Solid Waste Agency of Northern Cook County vs. United States (SWANCC -- No. 99-1178). In that case, the Supreme Court invalidated an administrative interpretation of Clean Water Act jurisdiction on which Rapanos' conviction was, in part, based.

On remand, federal officials claimed they had authority over Rapanos' property because the disputed wetlands were "hydrologically connected" to navigable waters. The trial court ruled in favor of Rapanos, but on appeal, the Sixth Circuit adopted a narrow reading of SWANCC, and reinstated his conviction. In December, 2003, the Pacific Legal Foundation asked the Supreme Court to take up John Rapanos' criminal case, but the court declined. However, in a separate case, the high court invalidated the mandatory sentencing guidelines originally applicable to Rapanos' criminal conviction.

Carabell vs. Army Corps of Engineers (No. 04-1384): Michigan property owners were denied permission to build a condominium complex in Macomb County, Mich. Although the property is separated by a berm from a ditch that feeds water into Lake St. Clair, it is nonetheless "adjacent" to the ditch and thus to "waters of the United States," the Army Corps of Engineers concluded.

S.D. Warren Co. vs. Maine Board of Environmental Protection (04-1527): Warren owns and operates five contiguous hydroelectric dam projects on the Presumpscot River in Cumberland County, Maine. He originally appealed a decision of a volunteer Maine Board of Environmental Protection that discharges from his dams to the river must meet water quality standards under the Clean Water Act. All lower courts ruled in favor of the board, and Warren appealed those rulings, saying the decisions of a volunteer board should not stand.

The cases are scheduled to be argued early next year.

U.S. Supreme Court: http://www.supremecourtus.gov

This article originally appeared in the 10/01/2005 issue of Environmental Protection.

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