# Important wetland court case decision



## Hamilton Reef (Jan 20, 2000)

Email to Tom from a Dave,

In an opinion filed yesterday, the U.S. Sixth Court of Appeals has reversed a district court and ruled in favor of the U.S. government in a long-running Michigan criminal wetlands enforcement case. The defendant was John Rapanos and the wetland affected is in Williams Township of Bay County.

According to the opinion, in 1988 or 1989, "Rapanos hired a consultant, who found at least forty-nine and at most fifty-nine acres of wetlands. After receiving the report, Rapanos asked the consultant to destroy any paper evidence of the wetlands on his property and then threatened to fire him and sue if he did not comply. Despite warnings from the Michigan Department of Natural Resources and the United States Environmental Protection Agency, Rapanos began destroying the wetlands on his property by filling them with earth and sand."

The court's ruling is particularly significant in light of a holding on federal jurisdiction over waters of the United States:

"As common sense makes clear, the Clean Water Act cannot purport to police only the navigable-in-fact waters in the United States in order to keep those waters clean from pollutants. A pollutant can contaminate non-navigable water and pollute the navigable-in-fact waters downstream. Congress acknowledged this reality when it created the Clean Water Act, stating, Water moves in hydrological cycles and it is essential that discharge of pollutants be controlled at the source. S.Rep. No. 92-414, at 77 (1972)...Any contamination of the Rapanos wetlands could affect the Drain, which, in turn could affect navigable-in-fact waters. Therefore, the protection of the wetlands on Rapanoss land is a fair extension of the Clean Water Act."

The decision is posted on-line here:

http://pacer.ca6.uscourts.gov/cgi-bin/getopn.pl?OPINION=03a0268p.06

Appeal from the United States District Court for the Eastern District of Michigan at Bay City. No. 93-20023Lawrence P. Zatkoff, Chief District Judge. Argued: June 18, 2003 Decided and Filed: August 5, 2003 Before: MARTIN, Chief Circuit Judge; NORRIS and ROGERS, Circuit Judges.


----------



## EdB (Feb 28, 2002)

Good decision, just a shame our local courts didn't make it.


----------



## Hamilton Reef (Jan 20, 2000)

Appeals panel reinstates conviction in long-running wetlands case 

TRAVERSE CITY (AP)  A federal appeals panel has ruled against a Michigan developer in a case that may strengthen the governments authority to protect wetlands.
The 6th U.S. Circuit Court of Appeals in Cincinnati upheld the conviction of John Rapanos of Midland, who was found guilty in 1995 of filling a wetland without a permit.	

http://www.ourmidland.com/site/news.cfm?newsid=9970806&BRD=2289&PAG=461&dept_id=472542&rfi=6


----------



## Hamilton Reef (Jan 20, 2000)

FOR IMMEDIATE RELEASE
January 13, 2006

Contact: Robert McCann (517) 241-7397

DEQ Director Urges U.S. Supreme Court to Protect Michigan's Waters

The Department of Environmental Quality today announced its support for an amicus brief filed in the U.S. Supreme Court. DEQ Director Steven E. Chester requested the Michigan Attorney General to file the brief in support of the federal government position in a pair of cases that initiated in Michigan. These two cases, John A. Rapanos v. United States of America, and June Carabell v. United States Army Corps of Engineers, both raise questions regarding the authority of the federal government to regulate the headwaters of traditionally navigable lakes and streams, along with the wetlands connected to those waters. The DEQ has urged recognition of the fact that protection of headwaters and tributaries to large lakes and streams is essential to the protection of the Great Lakes and other interstate waters.

"Our waters define us as a state, and I trust that the Supreme Court will also recognize the fundamental need for the protection of these resources," said Chester. "We must ensure that we leave future generations with a legacy of environmental protection, not degradation."

The Rapanos case arose from the filling of three wetland tracts in Midland, Bay, and Saginaw Counties without either a state or federal permit. DEQ staff initially investigated these violations, and the U.S. Environmental Protection agency initiated legal action. Criminal action was brought in one of the three cases, and Rapanos was found guilty of violating the wetland protection provisions of the Clean Water Act in a jury trial in March of 1995. The case on appeal involves the civil enforcement action brought by the U.S. Environmental Protection Agency. 

The Carabell case was initiated after the DEQ denied a permit to fill over 12 acres of wetland in Macomb County. Although a state permit was issued following an administrative appeal of this action, the federal government continued to assert that the proposed fill would violate federal standards, and refused to issue a permit.

The Supreme Court's decision could impact not only wetland permit programs, but also limits on the discharge of pollutants, eligibility for participation in federal grant programs, and other aspects of the Clean Water Act. While some have attempted to frame the case as an issue of the right of states to regulate internal waters, Michigan's Friend of the Court brief demonstrates that, should federal jurisdiction be limited by the court, the failure of one or more states to protect tributaries from pollution or destruction could have a devastating impact on Michigan waters, and adversely impact migratory waterfowl, fish, and other animals. 

The amicus brief was filed jointly by the Michigan Attorney General, the Attorney General of the State of New York, and the International Association of Fish and Wildlife Agencies. At least 30 other state attorneys general have also signed this brief. A decision by the Supreme Court is anticipated during the summer of 2006.


----------



## Hamilton Reef (Jan 20, 2000)

Relates to the Rapanos case from Michigan and would have significant
implications here and everywhere if Supremes decide against the environment:


FOR IMMEDIATE RELEASE: January 13, 2006

CONTACT:
Christina Kreitzer, 415-977-5619
David Bookbinder, 202-548-4598

Sierra Club Sides with Federal Government to Protect Valuable Waterways and Wetlands

Statement of David Bookbinder, Senior Sierra Club Attorney

A coalition of environmental and public health groups, including the Sierra Club, filed a friend-of-the-court brief today in support of the U.S. Government's position in two important Supreme Court cases. Both cases - Carabell v. United States and Rapanos v. United States - address whether the Clean Water Act protects tributaries that flow into larger water bodies and their adjacent wetlands and, if so, whether the Constitution gives Congress such authority. The Court is scheduled to hear the cases February 21.

David Bookbinder, Senior Attorney for the Sierra Club, issued the following statement:

"Thousands of waterways and the destruction of millions of acres of valuable wetlands are at stake in these two Supreme Court cases. A ruling against the government could remove all federal limits on pollution flowing into our waterways. The cases will determine what kind of contamination the Clean Water Act regulates - not just dredged or fill material discharges, but also whether sewage, sediment and toxic chemicals can be released into our waterways and neighboring wetlands.

"The outcome of these cases has such sweeping effects that interested parties ranging from hunter and angler advocacy groups to scientists to public interest groups are filing friend-of-the-court briefs siding with the federal government. All are urging the Supreme Court to keep our waters clean and healthy by maintaining the venerable protections offered by the Clean Water Act."

To obtain a copy of the amicus brief, please contact 
Christina Kreitzer at 415-977-5619.


----------



## Hamilton Reef (Jan 20, 2000)

I wanted to let folks know that the National Wildlife Federation, Michigan United Conservation Clubs, Ducks Unlimited, and several other conservation, sporting and businesses groups have weighed in on the wetlands case to be heard by the US Supreme Court.
Jordan

Millions of Acres of Wetlands, Streams at Risk in Supreme Court Case 

Conservation, Sporting, and Business Groups Weigh In for Clean Water Protection 

Like Protecting a Tree While Poisoning Its Roots 

Washington, DC (January 12) -- Major conservation, sporting, and business groups are weighing in on a potentially sweeping Supreme Court case that could end more than 30 years of Clean Water Act protection for more than half of the nations remaining wetlands and countless stream miles, leaving them open to pollution and destruction. At risk are wetlands and streams that flow into larger water bodies. 

Its like saying that you cannot cut down a tree, but are free to poison its roots., says Jim Murphy, National Wildlife Federation wetlands counsel, who represents the groups. Polluters could be halted from dumping waste into large bodies of water while being allowed to discharge pollution into streams, tributaries and wetlands that flow directly into those large bodies of water. Such a ruling by the Court would be an enormous setback for the health of all waters and for future generations that will depend on them.

The Supreme Court case combines two cases, Carabell v. United States and United States v. Rapanos which are on appeal from the Sixth Circuit Court of Appeals. Both address whether the Clean Water Act protects wetlands adjacent to small tributaries that flow into larger water bodies. The lower court upheld Clean Water Act protection of headwater wetlands and streams. An Army Corps of Engineers analyst has independently estimated that if the lower court ruling is overturned, well over half of remaining U.S. wetlands and streams would lose protection under the Clean Water Act. 

Joining the National Wildlife Federation and Ducks Unlimited in an amicus brief to be filed with the Court are the American Fisheries Society, American Sportfishing Association, Bass Pro Shops, Boone & Crockett Club, Izaak Walton League, Michigan United Conservation Clubs, Orvis, Pheasants Forever, The Wildlife Society, Theodore Roosevelt Conservation Partnership, Trout Unlimited and Wildlife Management Institute. 

The groups are supporting the Bush Administrations position in the case that Congress intended to protect headwater wetlands and tributaries under the Clean Water Act when it was passed in 1972. 

Reversal by the Court of long-standing Clean Water Act protections for wetlands and streams would be devastating to ducks and countless fish and wildlife species that require these areas to survive, says Scott Yaich, Ducks Unlimited Director of Conservation Programs.

Congress passed the Clean Water Act to ensure that future generations of Americans would not inherit lakes that are dead and rivers that cant support fish or wildlife, says Murphy. The lower court properly recognized that the Clean Water Act was intended by Congress to broadly protect Americas waters. If the Supreme Court reverses the lower court findings, it would leave our children a sad legacy of lifeless and polluted wetlands, streams, lakes and rivers. 

The cases involve Michigan wetlands slated for development. In the Rapanos case, the developer began filling in wetlands in three Michigan Counties without a permit. The 54 total acres of wetlands are connected to tributaries that flow into either Lake St. Clair or Lake Huron. The developer was found liable for the wetlands destruction under the Clean Water Act by the Sixth Circuit Court of Appeals. 

In the Carabell case, the developer wanted to build condo units on 19 acres of land in Macomb County, Michigan, about 15 of which was forested wetlands. The Carabell wetlands are adjacent to a tributary that flows to Lake St. Clair. A permit for the development was issued by the Michigan Department of Environmental Quality, but the Army Corps intervened and ordered the permit be denied. The developer then brought suit alleging the wetlands were not covered by the Clean Water Act. 

The combined cases will be heard by the Supreme Court on February 21st. 

We are confident the Court will uphold the intent and authority of Congress to protect our nations valuable wetlands and streams from pollution and destruction, for the benefit of wildlife and people says Yaich. 

The National Wildlife Federation is Americas conservation organization protecting wildlife for our childrens future. www.nwf.org. 

Ducks Unlimited, Inc. conserves, restores, and manages wetlands and associated habitats for North America's waterfowl. These habitats also benefit other wildlife and people. www.ducks.org.

Contact:
Jim Murphy, 802 229-0650 ext. 341
Julie Sibbing, 202 797-6832

Jordan Lubetkin
Regional Communications Manager
National Wildlife Federation
Great Lakes Natural Resource Center
213 W. Liberty St., Suite 200
Ann Arbor, Michigan 48104-1398
Phone: 734-769-3351 x 23 
Cell: 734-904-1589
Fax: 734-769-1449
[email protected] 

NWF's mission is to inspire Americans to protect wildlife for our children's future.


----------



## Hamilton Reef (Jan 20, 2000)

We will soon find out just how much political influence money can buy on the supreme court.

Case pits your property rights vs. environment

A sandy farm field in Midland and a swampy tree-studded triangle of land near Mt. Clemens are at the center of a case before the U.S. Supreme Court, which is poised to define the scope of federal authority over millions of acres of wetlands.
Oral arguments before the court Tuesday morning will be closely watched by property-rights advocates and environmental groups across the nation as justices determine the fate of so-called isolated wetlands not near lakes or streams.

http://www.freep.com/apps/pbcs.dll/article?AID=/20060217/NEWS06/602170447


----------



## Hamilton Reef (Jan 20, 2000)

Rapanos case might benefit from public opinion 

http://www.ourmidland.com/site/news.cfm?newsid=16234601&BRD=2289&PAG=461&dept_id=472539&rfi=6

If the U.S. Supreme Court case involving Midland developer John Rapanos has a friend, quite probably it could be Kelo v. New London. 

What, you say? Didn't the Supreme Court rule against Susette Kelo in that case, and allow the city of New London (a seaside town in Connecticut) to confiscate private property so that it could be given to another private property owner for economic development purposes? Didn't Susette Kelo lose? 

The answers are yes and yes, but what happened after the Kelo decision was pretty remarkable. 

Susette Kelo restored a home along the Thames River in Fort Trumbull, Conn., in 1997. The very next year, the city of New London turned to the power of eminent domain -- the ability of the government to take private property for public use. Only in this case they turned the property over to the New London Development Corp., a private corporation, for private development. 

Kelo sued, but the Supreme Court said the city was well within their rights to take the property, stretching the reach of the federal government all the more. 

But their logic is backfiring on them. Private citizens across the nation were outraged and demanded that state legislatures take action to address the issue. 

Since the decision, more and more state and local governments are passing laws against the use of eminent domain. Just this week, the Senate in Illinois passed a measure outlawing local government use of eminent domain for private purposes, unless the area designated is "blighted." 

Illinois is poised to join the five other states that already have passed laws restricting eminent domain. More than 40 other states are considering the bills. 

Rapanos' case, too, is about the reach of the federal government into what is generally regarded as a local issue, or so the justices argued when the case was heard Feb. 21. At what point does the Clean Water Act end and local law take over? 

Justice David Souter argued that Congress would not pass a law that didn't include the headwaters of a "navigable waterway," wherever that might lead the government. Justice Antonin Scalia couldn't believe the CWA included manmade ditches miles and miles from a "navigable waterway." 

Those are the opposing arguments, but if the justices want to know how Americans generally feel about government intrusion into private property areas, they need look no further than Kelo. 

That case is the tea leaves they can read.


----------



## Hamilton Reef (Jan 20, 2000)

Rapanos: Official transcript of Supreme Court oral argument http://www.supremecourtus.gov/oral_arguments/argument_transcripts/04-1034.pdf


----------



## Hamilton Reef (Jan 20, 2000)

Developers all wet in Supreme Court case

Suppose a neighbor announced that he wanted to cut down a tree in your yard. Now suppose you went to court to protect your tree, and the judge ruled that your neighbor couldn't cut down the tree, but it was OK if he poisoned its roots.

That's essentially what a coalition of developers and landowners want the U.S. Supreme Court to rule in a wetlands case now before the court.

http://www.freep.com/apps/pbcs.dll/article?AID=/20060318/SPORTS10/603180361/1058


----------



## Hamilton Reef (Jan 20, 2000)

Note how the Bush administration is using rain gardens (out of context) in his deceiving ways to aid the developers in court at the expense of the major waterfowl production areas. The GW Bush administration is laughing how the DU.org were suckers to support his developer lobbies.

Wetlands Reverse Long Decline -- If Golf Course Ponds Count

http://www.enn.com/today.html?id=10176

March 31, 2006  By John Heilprin, Associated Press

WASHINGTON  More people building ponds for golf courses and subdivisions or to retain stormwater and wastewater helped create the nation's first net gain in wetlands in a half-century of government record-keeping. 

About 5 percent of the contiguous United States, or almost 108 million acres, was covered with wetlands as of 2004, the Interior Department's Fish and Wildlife Service reported Thursday. It found a net gain of 191,800 acres of wetlands since the last report in 1997. 

Bush administration officials cast the report as evidence that the nation has turned a corner on years of wetlands losses. State wetland managers and advocacy groups for hunting, recreation and environmental causes all called the report misleading. 

The Fish and Wildlife Service reported a gain of 715,300 acres of shallow-water wetlands -- mainly artificial varieties of ponds -- which offset a continued loss of 523,500 acres of marshes, swamps, and other more traditional and natural wetlands that are the so-called nurseries of life. 

Swamps, marshes, fens, tidal marshes, peatlands and other water-laden ecosystems filter pollutants and sediments, control flooding and protect against coastal erosion. They also provide clean water and homes for fish, shellfish and wildlife, and stopping points for migratory birds. 

The report measures strictly the acreage, not their quality, and was completed before hurricanes Katrina and Rita ate up the Gulf Coast. Interior Secretary Gale Norton and Agriculture Secretary Mike Johanns cast the report as a partial fulfillment of President Bush's 2004 Earth Day pledge to move beyond his father's "no net loss" policy on wetlands. 

Bush promised then to restore or protect as much as 3 million acres of wetlands over the next five years. 

"A significant amount of the increase has been in ponds," Norton said. "People like having ponds as an amenity. ... Even ponds that are not a high quality of wetlands are better than not having wetlands." 

Norton said that while the overall state of the nation's wetlands remains "precarious," the report suggests that Bush administration restoration efforts are working. Johanns lauded farmers, ranchers and others voluntarily doing federally funded private conservation work. 

Others saw a different picture. 

"Unfortunately, the report's seemingly good conclusion that the nation has achieved 'no net loss of wetlands' is misleading," said Jeanne Christie, executive director of the Association of State Wetland Managers Inc. 

"The 'no net loss of wetlands' is largely due to the proliferation of ponds, lakes and other 'deepwater habitats,' as the report points out," she said. "These ponds include ornamental lakes for residential developments, stormwater retention ponds, wastewater treatment lagoons, aquaculture ponds and golf course water hazards." 

Don Young, executive vice president of Ducks Unlimited, said the report "diminishes the significance" of the damage to natural wetlands that is causing "fewer waterfowl, diminished wildlife in general, less flood protection, less seafood and lower water quality." 

The lower 48 states had an estimated 220 million acres of wetlands and streams in pre-colonial times, but 115 million acres of them had been destroyed by 1997. 

The estimates are based on a statistical sampling of 4,700 plots of land, each four square miles in size, that have been studied since 1954. 

On Monday, the Army Corps of Engineers and Environmental Protection Agency proposed new regulations promoting companies that specialize in creating wetlands. The proposal is intended to encourage developers who destroy wetlands or streams and are required to replace them to pay other businesses -- about 300 "mitigation bankers" -- to do the work. 

Congressional investigators have found that the Corps of Engineers could not ensure the 40,000 acres of wetlands restoration work required each year since 1983 is actually taking place.


----------



## Hamilton Reef (Jan 20, 2000)

The GW Bush hatred of wetlands, the environment, clean water, and future welfare of hunting-fishing habitat is now well documented with Bush's corruption of the Supreme Court with Chief Justice John Roberts and Justice Samuel Alito. The Sportsmen for Bush stickers are now celebrating their victories to destroy the wetland habitats for ducks, screw DU, and the destruction of wetland habitats for trout streams, screw TU. GW Bush is laughing how his developer campaign contributions conned the Sportsmen for Bush sticker aholes.

Full text of decisions is here
http://supct.law.cornell.edu/supct/html/04-1034.ZS.html

High court muddies wetlands rules
2 Michigan developers get new chance
http://www.freep.com/apps/pbcs.dll/article?AID=2006606200420

MUDDIED WATERS
Split U.S. High Court kicks back fate of wetlands development to Mich.
http://detnews.com/apps/pbcs.dll/article?AID=/20060620/POLITICS/606200374

Excerpts: What the justices said
http://detnews.com/apps/pbcs.dll/article?AID=/20060620/POLITICS/606200375

Editorial: Supreme Court bungles Michigan wetlands cases
In split ruling, U.S. justices leave the law unclear
http://detnews.com/apps/pbcs.dll/article?AID=/20060620/OPINION01/606200309


----------



## Hamilton Reef (Jan 20, 2000)

High court fails to protect wetlands

If you're an outdoors person, it should tell you something that Ducks Unlimited, Trout Unlimited, the Theodore Roosevelt Conservation Partnership and the National Wildlife Federation all came out with criticisms of the decision.

http://www.freep.com/apps/pbcs.dll/article?AID=/20060625/SPORTS10/606250658/1058


----------



## Hamilton Reef (Jan 20, 2000)

EPA official promises wetlands guidelines

8-30-06 By JOHN FLESHER AP Environmental Writer

TRAVERSE CITY, Mich. (AP) -- The Bush administration is preparing instructions for regulators puzzling over which wetlands are covered by federal clean water law, a top Environmental Protection Agency official said Wednesday.

But the EPA hasn't decided whether to issue a comprehensive regulation on the issue in the wake of a confusing U.S. Supreme Court ruling in two Michigan wetlands cases, said Benjamin Grumbles, assistant administrator for water.

"Our overarching goal is to continue to protect wetlands under the Clean Water Act to the maximum extent allowable since the decision," Grumbles told The Associated Press in an interview. "Which tools are the best to use is a policy decision we haven't made yet."

The high court took up the Michigan cases in hopes of settling a long-running debate concerning federal jurisdiction over wetlands. But the June 19 decision muddied the waters further.

The justices split three ways, with none of their five written opinions drawing majority support. Several urged Congress or federal agencies to deal with the issue, saying they were best suited to handle its complexities.

Courts have agreed the Clean Water Act requires permits to degrade wetlands alongside navigable waterways such as lakes and rivers. The question is whether the law also applies to tributaries of those waters and their adjacent wetlands - and if so, how far upstream.

The Army Corps of Engineers, which issues the permits, has contended the law's protections extend to virtually all "waters of the United States," including wetlands. Environmentalists agree, while developers and property rights advocates contend government jurisdiction is far more limited.

The key Supreme Court opinion, written by Justice Anthony M. Kennedy, said a permit could be required if there's a "significant nexus" between a wetland and a navigable waterway. The wetland must "significantly affect the chemical, physical, and biological integrity" of nearby navigable waters, he wrote.

After the ruling, the EPA - which oversees the federal wetlands program - instructed regulators to delay action on contentious permit applications while it analyzed the justices' opinions.

The agency soon will issue a "guidance" document that will offer the EPA's interpretation of what the Supreme Court decided, Grumbles said. The agency is working with the Justice Department to determine "how much stature to give certain pieces of the various five opinions," he said.

"We have no doubt that this interim guidance will help add clarity," he said. "We also have no doubt ... it won't be the end of the story either. We'll need to provide more details, and we're still reviewing whether or not to pursue a regulation in addition to the guidance."

Wetlands are valuable because they provide some of the planet's most diverse wildlife habitat. They also control floods and filter out pollutants.

The lower 48 states had over 220 million acres of wetlands in pre-colonial days. The total had shrunk to about 105 million by the late 1990s as wetlands were drained and filled for farming and other development.

Grumbles discussed the Supreme Court ruling Wednesday during the annual meeting of a group representing state wetland regulators. Members said they were anxiously awaiting the federal guidance.

Wetland protection "is a hot button and it always has been and it probably always will be, because you have to balance public and private interests," said Jeanne Christie, executive director of the Association of State Wetland Managers.

Michigan and New Jersey handle federal wetland permitting within their borders. But most other states likely will want a new regulation clarifying where federal jurisdiction applies, said Peg Bostwick, wetland specialist with the Michigan Department of Environmental Quality.

"My concern is that we do rulemaking sufficient to satisfy the Supreme Court but still straightforward enough to be comprehensible to the public," Bostwick said. "That's going to be a real fine line to walk."


----------



## Hamilton Reef (Jan 20, 2000)

First Circuit Interprets Rapanos Decision in a discharge case
http://www.ca1.uscourts.gov/pdf.opinions/05-1444-01A.pdf


----------



## Hamilton Reef (Jan 20, 2000)

State adds inspectors to boost wetlands protection

The state DEQ has added four new full-time inspectors to its 30-person enforcement team this winter using funds from a federal grant. While they still believe they could use more, they hope the added staff will send a message to developers that, despite the state's financial constraints, somebody is watching.

http://www.detnews.com/apps/pbcs.dll/article?AID=/20061124/METRO/611240376/1003


----------



## Hamilton Reef (Jan 20, 2000)

For immediate release

Contact: Abby Rubley May 22, 2007 (734) 662-9797 

Protect Americas Waters: 

Introduction of the Clean Water Restoration Act of 2007 by Congressman Dingell and Congressman Ehlers

Statement of Abby Rubley, Field Director of Environment Michigan

Environment Michigan applauds the leadership of Representatives Dingell (D-Ann Arbor) and Ehlers (R-Grand Rapids) as they lead the fight to protect all of Americas water, including the Great Lakes. They have joined with 150 of their colleagues in the U.S. House of Representatives to introduce the Clean Water Restoration Act of 2007. This important legislation protects Americas waters by ensuring that all U.S. waterways continue to be safeguarded by the Clean Water Act. 

The Clean Water Restoration Act of 2007 was born out the well known Michigan court case that reached the United States Supreme Court in 2006 (Rapanos v. United States). Given the unclear outcome of this case, Congressman Dingell and Congressman Ehlers recognized the need to clarify the Clean Water Act to ensure that all waters, including wetlands that are miles from waterways, are protected. 

This court case coupled with the Bush Administrations continued assault on our environment have left thousands of miles of streams and millions of acres of wetlands at risk of unlimited pollution and destruction.

Congress should take swift action to pass the Clean Water Restoration Act and protect all of Americas waters. We look forward to working with Representatives Dingell and Ehlers to enact this important legislation.Environment Michigan is a statewide, citizen-based, non-profit, non-partisan environmental organization. www.environmentmichigan.org


----------



## Hamilton Reef (Jan 20, 2000)

ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OW-2007-0282; FRL-8499-8]

EPA and Army Corps of Engineers Guidance Regarding Clean Water Act Jurisdiction After Rapanos

AGENCIES: U.S. Army Corps of Engineers, DoD; and U.S. Environmental
Protection Agency (EPA).
ACTION: Notice; extension of comment period.

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

SUMMARY: On June 5, 2007, the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers announced agency guidance regarding Clean Water Act (CWA) jurisdiction following the U.S. Supreme Court's decision in the consolidated cases Rapanos v. United States and Carabell v. United States (``Rapanos''). The agencies issued this guidance to ensure that jurisdictional determinations, administrative enforcement actions, and other relevant agency actions being conducted under CWA section 404 are consistent with the Rapanos decision and provide effective protection for public health and the environment. A six-month public comment period to solicit input on early experience with implementing the guidance began on June 8, 2007. The agencies are extending the public comment period by 45 days.

DATES: Public comments are now due by January 21, 2008.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2007-0282, by one of the following methods:
? http://www.regulations.gov: Follow the on-line instructions
for submitting comments.
? E-mail: [email protected]. Include the docket number, EPA-
HQ-OW-2007-0282 in the subject line of the message.
? Mail: Water Docket, Environmental Protection Agency,
Mailcode: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
? Hand Delivery: 1301 Constitution Ave., NW., Room 3334,
Washington, Dc 20460. Such deliveries are only accepted during the
Docket's normal hours of operations, and special arrangements should be
made for deliveries of boxed information.
? Instructions: Instructions for submitting comments are
provided in the notice published on June 8, 2007 (72 FR 31824).
Consideration will be given to all comments received by January 21, 2008.

FOR FURTHER INFORMATION CONTACT: Russell Kaiser, Regulatory Community
of Practice (CECW-CO), U.S. Army Corps of Engineers, Headquarters, 441
G Street, NW., Washington, DC 20314; telephone number: (202) 761-7763:
fax number: (202) 761-5096; e-mail address:
[email protected]. Donna M. Downing, Office of Water
(4502T), Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460; telephone number: (202) 566-1783; e-mail address:
[email protected].

SUPPLEMENTARY INFORMATION: In the June 8, 2007, issue of the Federal Register (72 FR 31824), the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers announced the issuance of agency guidance, which took effect on that date, regarding Clean Water Act (CWA) jurisdiction following the U.S. Supreme Court's decision in the consolidated cases Rapanos v. Carabell v. United States (126 S. Ct.
2208 (2006)) (``Rapanos'').
The agencies invited public comment and case studies during the first six months implementing the guidance, only early experience with implementing the guidance. Several entities have requested an extension of the comment period for the guidance. The EPA and the Corps find that a 45-day extension of the comment period is warranted. Therefore, the comment period is extended until January 21, 2008.
The agencies, within nine months after the Rapanos guidance was issued, intend to either reissue, revise, or suspend the guidance after carefully considering the public comments received and field experience
with implementing the guidance. A copy of the guidance can be found on EPA's Web site at http://www.epa.gov/owow/wetlands/guidance/CWAwaters.html and on the Corps' Web site at http://www.usace.army.mil/cw/cecwo/reg/.

Dated: November 21, 2007.
Benjamin H. Grumbles,
Assistant Administrator for Water, U.S. Environmental Protection Agency.
[FR Doc. 07-5867 Filed 11-27-07; 8:45 am]
BILLING CODE 6560-50-M


----------



## Hamilton Reef (Jan 20, 2000)

Protecting All Waters 

http://www.nytimes.com/2008/03/07/opinion/07fri3.html?_r=2&ref=todayspaper&oref=slogin&oref=slogin

03/07/08 

Half of the waters in the United States are at risk of pollution or destructive development because of a wrongheaded Supreme Court decision in 2006. The decision narrowed the scope of the Clean Water Act, weakened the laws safeguards and thoroughly confused the federal agencies responsible for enforcing it.

Before things get any worse, Congress should approve the Clean Water Restoration Act. The bill would reaffirm the broad federal protections that Congress intended when it passed the law in 1972. 

The 2006 ruling involved a Michigan landowner who had been barred from developing wetlands that had no visible connection to other bodies of water. Pouncing on minor ambiguities, four conservative justices ruled that the Clean Water Act protected only navigable, permanent or continuous flowing waters and adjacent wetlands. Four liberal justices, reflecting the traditional view of the law, said it protected all waters, including isolated wetlands and small, intermittent streams. 

Splitting the difference, Justice Anthony Kennedy ruled that remote wetlands and isolated streams deserved protection only if regulators could show a significant nexus  a physical or biological connection  to a navigable body of water somewhere downstream. Justice Kennedys test has effectively become the law of the land, with unfortunate results. 

In one celebrated case in Alabama, a company that knowingly polluted an otherwise pristine creek was let off the hook because, the court ruled, no significant nexus between the stream and a navigable river downstream had been established. Other industries have used the Kennedy opinion as a legal shield, claiming that they are only polluting isolated waters.

Meanwhile, harried regulators at the Environmental Protection Agency and the Army Corps of Engineers are mired in laborious and expensive (and in some cases speculative) efforts to determine whether a water body is significantly connected to a navigable one downstream and therefore protected by law.

Congress could cut through all this by removing any ambiguities and restoring the laws original scope to include all the waters of the United States  large or small, permanent or seasonal, navigable or not. That would restore order to an increasingly chaotic and ineffective regulatory system while protecting the physical and biological integrity of Americas waters.


----------



## Hamilton Reef (Jan 20, 2000)

Deal nears in wetlands case involving Midland developer

DETROIT -- A Michigan businessman has agreed to pay a $150,000 civil penalty and complete a 100-acre wetlands mitigation project near Midland as final settlement of a 14-year-old property rights case that went to the U.S. Supreme Court.

John Rapanos has also agreed to leave undeveloped about another 135 acres as part of a proposed settlement of a civil lawsuit filed against him by the U.S. Environmental Protection Agency. The federal government filed the proposed consent order today in U.S. District Court in Detroit. The order is still subject to a 30-day public comment period and approval by Chief U.S. District Judge Bernard A. Friedman.

In 2006, in a 5-4 ruling, the Supreme Court said there must be a substantial connection between wetlands and the waters they feed in order for the land to fall under the Clean Water Act. But the court did not define how close to a waterway wetlands must be to merit federal protection. The Supreme Court sent the Rapanos case back to the federal court in Detroit, leading to the proposed settlement.

http://www.detnews.com/apps/pbcs.dll/article?AID=/20081229/METRO/812290410/1409/METRO


----------



## Hamilton Reef (Jan 20, 2000)

Commentary Wetlands case highlights fragility of property rights

After hundreds of thousands of dollars in attorneys fees and 14 years of court battles with no end in sight, Michigan's John Rapanos finally gave up his fight to defend himself against accusations that he illegally filled wetlands on his private property in violation of the Clean Water Act.

Despite winning his case in the U.S. Supreme Court, Rapanos recently settled it with the federal government. He agreed to pay fines and mitigation fees approaching $1 million. Federal prosecutors immediately hailed the settlement as a vindication of their virtually limitless power to regulate local wetlands nationwide. 

But this settlement only demonstrates the inability of individual citizens to stand up for their rights against the overwhelming resources of Big Government.

http://www.detnews.com/apps/pbcs.dll/article?AID=/20090129/OPINION01/901290324/1008


----------



## Rustyaxecamp (Mar 1, 2005)

Hamilton Reef said:


> But this settlement only demonstrates the inability of individual citizens to stand up for their rights against the overwhelming resources of Big Government.


Bingo.


----------

