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December 1, 2003PRESERVING MICHIGAN'S WATERSMichigan wetland case could help rewrite national policyBy JOHN FLESHERAssociated Press Writer Activists who believe wetland regulation tramples property rights are looking hopefully at the case of a Michigan landowner whose refusal to take "no" for an answer may put him behind bars. John A. Rapanos has been fighting state and federal agencies for years over his destruction of dozens of wetland acres in Bay County's Williams Township. A federal jury found him guilty in 1995 of violating the Clean Water Act. The U.S. Sixth Circuit Court of Appeals upheld his conviction last August. He could go to prison for 10 to 16 months, but sentencing is on hold while Rapanos appeals to the Supreme Court. Property rights advocates hope - and environmentalists fear - his case will produce a landmark ruling that curtails the federal government's authority over some 20 million acres of wetlands nationwide that aren't immediately adjacent to a navigable waterway. "We've taken the case because of its precedent-setting value," said M. Reed Hopper, an attorney with the Pacific Legal Foundation. The California-based law firm represents landowners and developers in battles with environmental regulators. Hopper shortly will file papers asking the nation's highest court to accept the case. Of several potential candidates, the Rapanos case might give the property-rights movement its best shot at watering down wetland protection, said Patrick Parenteau, an environmental law scholar at the University of Vermont. That's because the landowner was prosecuted as a criminal for breaking what many consider a vague law, he said. Most violations of wetland law are civil matters. "He probably would be a sympathetic figure for the conservative members of the court," Parenteau said. They might be especially reluctant to interpret the law favorably for wetlands, he said, if doing so would mean jail time for "an average, ordinary businessman." Jennifer Peregord, the assistant U.S. attorney handling the case for the government, isn't convinced the Supreme Court will take it because a case from Virginia that raises similar issues was in line first. But if the Rapanos matter does reach the high court, Peregord said, the Environmental Protection Agency believes it can win. Both sides would ask the court to clarify its 2001 ruling that the government went too far when it tried to regulate as wetlands an abandoned Illinois quarry where ponds had formed. The Army Corps of Engineers had claimed jurisdiction because migratory birds use the ponds, but the court said that didn't make them federal waters. Yet the ruling didn't make clear whether the court found only the migratory bird rule excessive, or was issuing a broader indictment of wetland regulation. Since then, that question has been raised in some 30 federal court cases - including Rapanos'. The Michigan landowner contends the wetlands he destroyed, part of a 175-acre property he wanted to sell for development, were not under federal control. They were between 11 and 20 miles from the nearest navigable waterway, connected to a drainage ditch that flowed into a stream, which finally reached the Kawkawlin River - a tributary of Lake Huron's Saginaw Bay. They're all part of the same hydrological system, say the EPA and the Michigan Department of Environmental Quality, so pollution from the wetland eventually will reach the bay. "The EPA still believes that tributaries are fully subject to regulation" and the Supreme Court's 2001 ruling doesn't change that, Peregord said. The appeals court agreed. Hopper hopes the Supreme Court uses the Rapanos case to state clearly that wetland regulation under the Clean Water Act is limited to navigable waters affecting interstate commerce. "Anyone can see that filling a small, 2-foot pool of water which may be deemed a wetland in the middle of a field has nothing to do with interstate commerce," he said. |
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