On Tuesday, the U.S. Supreme Court will hear arguments in two wetlands cases, the resolution of which could affect millions of acres of swamps, marshes and bogs across the U.S.
CHESTERFIELD TOWNSHIP, Mich. — Keith Carabell parked his car beside a snow-covered woodlot hemmed in by townhouses, gas stations, a McDonald's, Kmart and other emblems of creeping suburbia on the northern fringe of metropolitan Detroit.
"This is what they call a wetland," the 78-year-old accountant said, gesturing disgustedly at the 19-acre parcel he and his partners own. "An island sitting out here in the middle of this residential and commercial development."
On Tuesday, the U.S. Supreme Court will hear arguments in Carabell's two-decade fight to build condominiums on the property. Regulators say it's among the last forested wetlands in Macomb County and should remain intact for wildlife habitat and erosion control.
The court also will consider the case of John Rapanos, a Michigan landowner whose feud with regulators led to a criminal conviction after he illegally filled wetlands with dirt.
Dozens of interest groups have filed briefs in the cases, the resolution of which could affect millions of acres of swamps, marshes and bogs across the U.S. It also could signal whether the Supreme Court will veer rightward on environmental issues with the arrivals of Justices John Roberts and Samuel Alito.
Wetlands help filter contamination, control floodwaters and shelter spawning fish and waterfowl, but much of the nation's supply has been lost over the years.
Four previous administrators of the Environmental Protection Agency, 34 states, environmentalists and outdoor recreation groups are among those supporting the government, which contends the Clean Water Act protects the Carabell and Rapanos wetlands.
Property-rights advocates, the American Farm Bureau Federation, the U.S. Chamber of Commerce and a coalition of Western water agencies support the landowners, who claim their properties are too far removed from any navigable water body to fall under the 1972 law.
The Clean Water Act requires landowners to get a permit from the U.S. Army Corps of Engineers before putting fill material into waterways. Regulations and court decisions generally have interpreted the law as giving the Corps wide discretion to prevent wetland degradation.
But in a 2001 case, the Supreme Court excluded "isolated" wetlands that don't cross state lines and have no hydrological connection to navigable waters. In that case, the court ruled in favor of Chicago-area suburbs that wanted to build a landfill atop abandoned gravel pits that had filled with water and were being used by migratory birds.
The Michigan cases involve wetlands adjacent not to navigable waterways themselves, but to their tributaries. The Carabell woodlot is a mile away from Lake St. Clair; the Rapanos property is about 20 miles from a river that empties into Lake Huron.
The Army Corps says the wetlands are linked to the larger water bodies by ditches and streams, and that degrading them would allow pollution to reach the navigable waters.
Protecting large waters but not their tributaries is "like saying that you cannot cut down a tree, but are free to poison its roots," said Jim Murphy, an attorney with the National Wildlife Federation.
He said a victory of Carabell and Rapanos "would be an enormous setback for the health of all waters and for future generations that will depend on them."
If stripped of their legal shield, more than half of the 100 million acres of wetlands in the lower 48 states that haven't already been drained or filled could be lost, said Scott Yaich, conservation director for Ducks Unlimited.
But Reed Hopper, who will argue Rapanos' case before the court, said most states and many local governments safeguard wetlands and can strengthen their laws if federal authority is curtailed. The Pacific Legal Foundation attorney contends the real issue isn't clean water, but federal overreaching.
Hopper contends that zealous bureaucrats have violated property rights by going to ridiculous extremes, at times asserting control over mostly dry land miles from any commercial or recreational waterway.
Carabell called it "sort of like Cuba or Russia or some other despotic government deciding what's going to happen with private property."
Carabell and several partners received a permit from the Michigan Department of Environmental Quality for their condominium project. But the Army Corps balked, saying the wetlands were too ecologically valuable to destroy.
Rapanos, 70, a real estate developer from Midland, became a poster child for property-rights advocates when the federal government prosecuted him in 1995 for illegally filling wetlands. He had cleared vegetation and spread dirt on a 175-acre parcel to build a shopping center, ignoring cease-and-desist orders.
Rapanos was convicted in 1995, fined $185,000 and put on probation. The government is appealing the judge's refusal to order prison time.
The government also won a civil suit against Rapanos -- the case before the Supreme Court.
If tributary wetlands are so important they can't be developed, the government should buy them, Carabell said.
"If they want to take my land and make it a frog pond or whatever they want, fine -- just pay me for it," he said. "Otherwise you're taking private property without compensation, which is unconstitutional."
Source: Associated Press
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