Michigan wetlands case will test Clean Water Act
By Jack Lessenberry
Published March 3, 2006
ANN ARBOR. Mich. - For weeks, Michigan has been preoccupied with worries about the future of the auto industry, squabbles over the Detroit Zoo, and horror over the saga of a young couple, now arrested, who went on a killing spree in the suburbs.
Nearly lost in the background noise were oral arguments in a Michigan-based U.S. Supreme Court case that is likely to have enormous impact on the environment - no matter how it is decided. What is at issue is whether the federal Clean Water Act, passed in 1972, prevents private property owners from doing what they like with "interior wetlands," especially those not clearly connected to any major body of water.
Environmentalists say the act absolutely applies to such areas. They say protecting such wetlands is absolutely crucial to protecting the water supply. Otherwise, it is "like saying that you cannot cut down a tree, but are free to poison its roots," attorney Jim Murphy of the National Wildlife Federation told the Associated Press.
But in two cases which were combined and argued before the U.S. Supreme Court Feb. 21, attorneys for the land owners argued that this was an enormous abuse of government authority.
The cases involve two Michigan developers. Keith Carabell is an owner of a 19-acre woodlot in northern Macomb County, surrounded by gas stations and strip malls and close to 20 miles from any river or navigable body of water.
As the law prescribes, he asked the state for permission to build condominiums on the land, and initially the Michigan Department of Environmental Quality approved it.
But the U.S. Army Corps of Engineers vetoed that, saying the land was too ecologically valuable to destroy. Frustrated, Mr. Carabell sued, saying the government was behaving like "Cuba or Russia" in trampling his private property rights.
The second defendant, John Rapanos, a 70-year-old developer in the Midland-Bay City region, may be a bit less sympathetic. He refused to apply for any permits at all, ignored court orders, and filled in at least 54 acres of wetlands in his area. He has been convicted in lower courts and ordered to pay enormous fines.
Mr. Rapanos has mounted an erratic defense, sometimes saying that the government had no right to tell him what to do with his lands and sometimes claiming that they weren't wetlands at all.
The government, in fact, was so outraged by his behavior that it is appealing a judge's decision not to send him to prison.
Both these cases were combined before the U.S. Supreme Court. The proceedings were notable because in this case, the Bush Administration is on the same side as the environmentalists.
Attorneys for the developers argued that the Clean Water Act protects only navigable bodies of water, or tributaries that clearly drain into them. Environmentalists said that was nonsense.
They were supported by the U.S. House of Representatives' two most senior members, U.S. Reps. John Dingell and John Conyers, both of whom are Michigan Democrats and were co-sponsors of the Clean Water Act. They say it was definitely intended to apply to all wetlands.
The reason interior wetlands need to be protected, they and other environmentalists say, has to do with the water table. When wetlands are filled in, they lose their ability to soak up rainfall - and all the pollutants in the air and on the ground.
That means there is little or nothing to prevent everything from pesticides to fertilizer from running off into Michigan's major rivers and Great Lakes, jeopardizing everything from fishing to drinking water and potentially threatening flood control efforts.
While the nation's highest court could make a decision on narrow technical grounds, most observers expect a more sweeping, possibly landmark decision that could either strengthen the government's ability to protect water quality - or destroy it.
Handicapping such decisions is always risky, but based on past precedent, it might seem reasonable to predict that Justices Antonin Scalia and Clarence Thomas will rule on behalf of the property owners, and that the new kids on the bench, Chief Justice John Roberts and Samuel Alito will join them.
Justices John Paul Stevens, David Souter, Ruth Bader Ginsberg, and Stephen Breyer are expected to support the government - leaving Justice Anthony Kennedy as the likely deciding vote. Expect a decision by June or July.