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Thread: Wetland cases before U.S. Supreme Court

  1. #1
    Cyburbian Plus
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    Wetland cases before U.S. Supreme Court

    Rapanos vs. United States
    and
    Carabell vs. United States

    Summary Box: High Court to Weigh Wetlands
    By The Associated Press

    THE ISSUE: The Supreme Court hears arguments Tuesday in two Michigan cases that will help determine which wetlands are subject to regulation under the Clean Water Act.

    THE ARGUMENTS: Environmentalists say virtually all wetlands should be covered. Property-rights advocates say the law protects only wetlands directly adjoining navigable waterways.
    From USA TODAY
    If the court buys the Michigan landowners' arguments, the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency would have to stop using rules that have been on the books for 30 years to protect wetlands and water quality in all the nation's streams. The states would then assume responsibility for regulating wetland developments and pollution discharges into ditches and streams.

    The result would likely be a patchwork of state regulations that could stymie federal efforts to clean up pollution in interstate bodies of water like the Great Lakes, the Chesapeake Bay and the Mississippi River, critics say. Downstream states, like Louisiana, would be at the mercy of upstream states, like Iowa, to do their part to limit polluters, critics say. Attorneys general from 34 states and the District of Columbia have filed court briefs asking that federal controls be maintained.

    "These federal environmental laws were designed to help keep peace among the states, to give them a way to address upstream pollution problems coming from their neighbors," said Howard Fox, a lawyer for the environmental group Earthjustice. "In Louisiana, pollution comes as far away as Wyoming and Minnesota."

    Rob Rivett, a lawyer with the Pacific Legal Foundation who is representing Rapanos, said states could create interstate compacts to deal with pollution problems. Under the Constitution, Congress cannot interfere with states' regulation of local land and water uses unless those uses impact interstate commerce, he said. Federal agencies can regulate only those wetlands and waters next to larger rivers and lakes that traditionally have been used by boats in interstate commerce, he said.

    "The Corps of Engineers is trying to turn (the Clean Water Act) into a federal land-use control program," Rivett said.
    Another article about these cases from the Detroit Free Press:
    Case pits your property rights vs. environment


    EDIT: per Wanigas
    This will being interesting to follow because
    it is not so much about the definition of what a wetland is; but more of where they are they are.
    Had you heard of these cases yet ?
    There has not been any local coverage about them here along the Ohio River.
    Last edited by JNA; 19 Feb 2006 at 9:20 PM.
    Oddball
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  2. #2
    Cyburbian Wannaplan?'s avatar
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    Isn't this where NHPlanner comes in and says, "C'mon! You can do better than this... add some commentary..." and closes the thread?

  3. #3
    Cyburbian Coragus's avatar
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    I have heard of these cases, and I don't know enough about them to really comment. If the EPA is shown to be arbitrarily chosing wetlands to protect without any method to their madness, then they should have the rule abolished. If the EPA has 30 years of a well founded system of protecting the USA's best wetlands and act as a safety net for those states that don't have good wetland protection, then they should stand.
    Back home just in time for hockey season!

  4. #4
    Cyburbian Wannaplan?'s avatar
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    How's the case coming along?

    It's being heard today, and here is a newsflash from the Flint Journal, from about 2:00 pm EST:

    Justice David Souter, questioning the attorney for one of the property owners, John Rapanos, suggested that limiting the law's reach could allow an "end-run around the regulation" by polluters.

    "All you have to do is dump the pollutant upstream far away from the watershed, and you get away scot-free," Souter said.

    But the government was questioned by Chief Justice John Roberts and Justice Antonin Scalia, who said an overly broad interpretation of the law might give regulators jurisdiction over storm drains and ditches.

    "I don't know how a storm drain is a water of the United States," Scalia said.

    Roberts told Solicitor General Paul Clement that "at some point the definition of tributary has to have an end" or it would go beyond the intention of Congress.

  5. #5
    Cyburbian Plus
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    Great point made with these qoutes:
    "At some point, the definition of a tributary has to have an end." — Chief Justice John Roberts.


    "The justices clearly recognized that declaring every drainage ditch a potential tributary to a navigable water would give the federal government virtually unlimited control over land use, since most roads and many private properties in America are bordered by drainage ditches or storm drains."
    — Patrick J. Wright, senior legal analyst for the Michigan-based Mackinac Center for Public Policy.
    Quotes from Supreme Court's hearing of Michigan wetlands cases
    http://www.mlive.com/newsflash/michi...t=newsmichigan
    Oddball
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  6. #6
    Cyburbian Wannaplan?'s avatar
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    Just FYI, the Mackinac Center Policy Group is a conservative think tank based here is Michigan. I would say that quote is an extreme misrepresentation and implies that the feds, since the inception of the Clean Water Act, have been acting arbitrarily and capriciously in matters of local land use policy. That isn't the case. Mr. Rapanos filled in a wetland in Michigan and was asked by the State to mitigate and pay a fine for violating the law- he was never told he couldn't use his property.

    EDIT: Clarification with more details about the action against Mr. Rapanos, from Yahoo! news:

    In the case of John and Judith Rapanos, the critical acres are 20 miles from the nearest navigable waterway. In December 1988 they applied for permission to build a shopping center on the site. There was a drawback: Much of the site probably would qualify as protected "wetlands" under federal law. If so, the property could not be cleared and filled without approval from the Corps of Engineers.

  7. #7
    Cyburbian
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    [QUOTE=JNA]Rapanos vs. United States
    and
    Carabell vs. United States

    QUOTE]

    JNA,
    Just a suggestion: Call, email or write your local Corps of Engineers District office or look on the web under "Corps of Engineers Regulatory Offices" and ask the Corps the definition of "Navigable Waters of the United States." That definition drives their authority to protect wetlands and streams in the USA under the Clean Water Act.

    I'm sure that you will find their definition to be rather broad and justifiably so for various historic reasons. You would be amazed to see the reach of their enforcement under the Clean Water Act and it has nothing to do with land use controls - just good ecological sense.

    We will be in deep trouble if the Court finds in favor of the landowners in this battle, there won't be a wetland left standing if they win and the potential for suits based upon passed permit denials will be endless. Some states have massive wetlands perched on mountaintops that would be perfect ski village developments if they weren't protected. Root for the Corps on this one.

    H2OPlanner

  8. #8
    Cyburbian Plus
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    UPDATE:

    Oral Argument Transcripts are available at:
    http://www.supremecourtus.gov/oral_a...ts/04-1034.pdf
    Oddball
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    Broke parts take a little longer, though.
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  9. #9
    Cyburbian hilldweller's avatar
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    Doubt the Corps will win this one. Roberts will try to pop his cherry as a "true" conservative and side with the landowners. Of course, either way this case is decided won't matter in Florida, where the Corps gives out dredge and fill permits like halloween candy.

  10. #10
    NIMBY asshatterer Plus Richmond Jake's avatar
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    When I worked for a jurisdiction out in California they used the line "if you can float a toothpick in it, it's navigable."

  11. #11
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    UPDATE - BUMP

    Top Court Split Over Wetlands Protections
    Headline and Article from the AP Wire:

    Highlights:
    The Supreme Court ruled 5-4 Monday that regulators may have misinterpreted the federal Clean Water Act in refusing to allow two Michigan property owners to build a shopping mall and condos on wetlands they own.

    At the same time, justices could not reach a consensus on whether government wetlands protections extend miles away from waterways.
    Oddball
    Why don't you knock it off with them negative waves?
    Why don't you dig how beautiful it is out here?
    Why don't you say something righteous and hopeful for a change?
    From Kelly's Heroes (1970)


    Are you sure you're not hurt ?
    No. Just some parts wake up faster than others.
    Broke parts take a little longer, though.
    From Electric Horseman (1979)

  12. #12
    Cyburbian Wannaplan?'s avatar
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    Thanks for the update. Quote from the article:

    Instead of ruling in the property owners' favor, as they requested, justices said lower courts must reconsider whether ditches and drains near wetlands are waterways.

    The court's four most conservative members wanted a more sweeping ruling, clearing the way for development of land unless it was directly connected to waterways.

    The court's four most liberal members said that such a ruling would reject three decades of practice by the Army Corps of Engineers and threaten the environment.

  13. #13
    Cyburbian
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    Supreme Court rules on wetlands

    Looks like the Clean Water Act and the Army Corps regualtions on wetlands just took a big hit. You can read the case here:
    http://www.supremecourtus.gov/opinio...df/04-1034.pdf

    Moderator note:
    Merged into existing thread.

  14. #14
    Cyburbian imaplanner's avatar
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    Quote Originally posted by cololi
    Looks like the Clean Water Act and the Army Corps regualtions on wetlands just took a big hit. You can read the case here:
    http://www.supremecourtus.gov/opinio...df/04-1034.pdf

    Did it? I am having trouble making sense out of this one. It looks like it was close to taking a big hit (based on Scalia, Alito and Roberts opinions) but instead the case was remanded to lower courts to determine whether the waterways would be regulated under the CWA.

  15. #15

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    Well, this has to be the end of conservative's complaints about judicial activism by liberals. The plurality clearly demonstrates that conservative judges are just as apt to re-write the law to suit their ideology as liberals. What's most notable, however, is that this exercise in ideology provides not one iota of relief to the landowners who brought the case. It is not only a clear example of the judicial activism that conservatives whined about for years, but also a clear example of how ideological conservatives are far more interested in their "principles" than they are in actually helping folks out.

  16. #16
    moderator in moderation Suburb Repairman's avatar
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    I wouldn't go hitting the panic button yet. In all likelihood Kennedy's opinion will be used by lower courts in the future to determine applicability of the CWA and Wetlands stuff. That still leaves it substantially open for interpretation in the lower courts. If history is an indication, the lower courts will still probably continue to give the benefit of the doubt to the government, IMHO.

    I think this case is getting more press time than it really deserves.

    "Oh, that is all well and good, but, voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country."

    - Herman Göring at the Nuremburg trials (thoughts on democracy)

  17. #17
    Cyburbian The One's avatar
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    Good Read....

    Check out the latest Planning and Enironmental Law Journal viewpoint by Dwight H. Merriam, FAICP "Up the Creek Without a Paddle: The U.S. Supreme Court Decides Little in Deciding Rapanos and Carabell"

    Looks like the Corps has their work cut out for them......again....
    Anyone out there believe our current Congress will "help" clarify wetland/connectivity issues?

    My jurisdiction has already been told by the Corps that they "may" not be interested in enforcement until they can figure out what to do next......(my paraphrasing of what I think they said...)
    Skilled Adoxographer

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