ruling may decide fate of wetlands
U.S. Supreme Court to hear 2 Mich. cases
By Tom Henry
Published January 23, 2006
A landmark wetlands case that the U.S. Supreme Court
will hear Feb. 21 could have huge implications for the
continued efforts to restore western Lake Erie, Great
Lakes advocates said.
At stake is not only valuable habitat for waterfowl and
other wildlife - but also some important acreage that
helps with flood control and with preventing runoff pollution
from entering rivers, lakes, and streams.
Ohio historically ranks second to California for wetlands
Ottawa County has many of the most valuable wetlands
that remain in Ohio.
Leading the fight to preserve them is Mark Shieldcastle
and Steve Barry of the Ohio Department of Natural Resources.
Mr. Shieldcastle is chief of the agency's Crane Creek
Wildlife Research Station at Magee Marsh in Ottawa County.
"The bottom line is, we're in bad shape as it is.
This [Supreme Court case] is going to have a major ramification
for the status quo. You could say we have no way to win
if we lose this case," Mr. Shieldcastle said.
The court will decide two land-use battles involving
June and Keith Carabell were denied a permit to fill
in 15 acres of forested wetlands to facilitate construction
of a 112-unit condominium project in southeastern Michigan's
John Rapanos, 70, filled in 54 acres of wetlands in Midland,
Bay, and Saginaw counties in the late 1980s without first
obtaining the required federal permits.
The federal government is seeking $13 million in fines
and fees and wants an order that would require him to
permanently set aside 80 acres as wetlands.
On appeal is a lower court judge's sentence of three
years probation and a $185,000 fine for Mr. Rapanos.
Mr. Rapanos' attorney, Reed Hopper of the Pacific Legal
Foundation in Sacramento, told The Blade last week that
his opponents have overblown the environmental fears.
He said the case pits private property rights against
the federal government's abuse of power.
"This is not only a property rights case. It's a
civil rights case," said Mr. Hopper.
Mr. Rapanos wanted to sell his property to a shopping
mall developer. The land he filled is 20 miles from Lake
Huron, but connected to tributaries that flow into it,
according to court records.
Mr. Hopper said his client's case illustrates how the
government has seized power and denied people their constitutional
property rights by using the 1972 Clean Water Act as justification
for regulating wetlands isolated from navigable bodies
"We raise a constitutional challenge to the regulation
in this case," said Mr. Hopper.
The California attorney argues that states should have
authority over isolated wetlands, not the federal government.
He warns that a victory by the federal government could
result in an erosion of civil liberties in other areas.
But Mr. Hopper's claim isn't endorsed by attorneys general
of 34 states, plus the District of Columbia. On Thursday,
the attorneys general filed a joint friend-of-the-court
brief, known as an amicus curiae brief, with the U.S.
Supreme Court in support of the status quo.
State officials argue that their water programs are tied
to federal definitions and authority.
Weakening wetlands laws at the federal level "may
compromise implementation of important state programs,"
the brief said.
The Clean Water Act, widely seen by legal scholars as
a historic environmental law, is viewed by government
officials as their greatest source of ammunition against
would-be water polluters.
Today's tough water regulations for sewage plants and
industrial plants are, in fact, steeped in the 1972 Clean
Water Act. Yet many claim the legal definition of how
the act applies to wetlands is murky.
The case seeks to clarify a 2001 ruling in which the
Supreme Court, by a 5-4 decision, struck down a federal
rule requiring a permit for the dredging or filling of
wetlands visited by migratory birds.
U.S. Rep. John Dingell (D., Dearborn) is one of many
past and current members of Congress who on Jan. 13 filed
their own joint amicus brief.
The signatories argue that Congress intended to have
the federal government wield the power it now does over
The consolidated case, Carabell vs. U.S. Army Corps of
Engineers and Rapanos vs. United States, certainly appears
to have struck a nerve.
As of last week, no fewer than 25 amicus curiae briefs
had been filed either jointly or individually by dozens
of major industry, environmental, and policy groups, including
the National Association of Home Builders, the International
Council of Shopping Centers, the American Petroleum Institute,
Croplife America, the American Farm Bureau Federation,
the National Association of Waterfront Employers, Ducks
Unlimited, Earthjustice, and the Chesapeake Bay Foundation.
Nationally, Ducks Unlimited estimates that more than
half of America's 100 million acres of wetlands could
be affected by the ruling.
So could America's 82 million hunters, anglers, and wildlife-watchers
who spend $108 million a year on outdoor activities, the
Contact Tom Henry at: firstname.lastname@example.org or 419-724-6079.