April 27, 2004

GRAPPLE OVER THE GREEN

Wetlands war may result in prison time

Supreme Court declines to hear developer’s case

   Now, the Midland subdivision developer may go to prison.

   Convicted in 1995 of filling wetlands in mid-Michigan farm country, Rapanos awaits sentencing after the Supreme Court declined this month to take his case. Under federal guidelines, he could get 10 to 16 months.

   “I’ve never committed a crime,” he insisted in an interview. “I’m innocent, and it’s falling on deaf ears.”

Wetlands: What deserves protection? By JOHN FLESHER The Associated Press Ecologically valuable wetland, or plain old puddle? Time and again across the nation, landowners and developers clash with regulators over which wetlands are eligible for protection under state and federal clean-water laws. They often wind up in court. The U.S. Supreme Court sidestepped the debate this month, declining to review three cases that raised questions about the extent of government jurisdiction over wetlands. Among them: the matter of Michigan developer John Rapanos. That leaves Congress and the federal agencies that oversee wetlands - the Army Corps of Engineers and the Environmental Protection Agency - to wrestle with the jurisdictional issues, while activists in the pro-development and pro-conservation camps watch nervously. “We’re quite certain that the federal government will infer that it has a blank check now to regulate virtually any water that flows,” said attorney M. Reed Hopper of the Pacific Legal Foundation, which represents Rapanos. Jim Murphy, water resources counsel for the National Wildlife Federation, sees it differently: “You certainly do not have a Corps or an EPA right now that has the political willpower to go out and be aggressive about asserting jurisdiction” over wetlands. The Clean Water Act of 1972 says people wanting to develop “waters of the United States” - including wetlands - must obtain a permit. But does that mean all wetlands, or only those adjacent to a navigable water body such as a lake or river? Competing interests disagree. In 2001, the Supreme Court said the law didn’t cover an abandoned Chicago quarry where ponds had formed, providing a stopover for migratory birds. The Army Corps had tried to save the ponds from being converted to a landfill. Development and property-rights groups say the ruling endorsed the narrower definition of protected wetlands. If so, environmentalists said, it could expose millions of acres of pools, bogs and shallow ponds to development. But in subsequent cases - including Rapanos’ - federal appeals courts have tended to interpret the 2001 ruling as narrowly tailored to the Chicago situation.

   Government officials and environmentalists say Rapanos repeatedly violated laws that protect wetlands, which provide crucial habitat for aquatic species, help prevent floods and filter pollutants from waterways.

   “He’s probably the single most renegade developer we know of,” said Terry Miller, chairman of the Lone Tree Council, a local conservation group.

   The case has drawn attention from environmentalists and property rights activists nationwide because it raises far-reaching questions about the government’s authority to shield wetlands from development.

   It is noteworthy not only for its duration, but because it wound up in criminal court. Most wetland violations generate civil lawsuits or out-of-court settlements that levy fines and provide for fixing the damage.

   The U.S. Environmental Protection Agency did file a civil suit against Rapanos over alleged wetland destruction on other parcels. A judge ruled against him and the case is pending with the U.S. Sixth Circuit Court of Appeals in Cincinnati.

   But the EPA opted for criminal charges after failing to reach a deal regarding a 175-acre site in Bay County’s Williams Township. Officials said Rapanos filled wetlands there despite numerous cease-and-desist orders.

   “If you cannot get someone to comply with the law, we think that’s a really egregious violation and that it did warrant criminal prosecution,” said Jennifer Peregord, an assistant U.S. attorney in Detroit.

   Rapanos attorney Julie Keil contends the government had no genuine interest in settling. “How can you negotiate with somebody who doesn’t want to negotiate, but just force compliance?”

   The fight began in the late 1980s, as Rapanos cleared trees from the property for construction of a shopping center.

   The Michigan Department of Natural Resources told Rapanos the site contained wetlands that couldn’t be developed without a permit. He hired a consultant, who reported finding 49 to 59 acres of wetlands.

   According to court documents, Rapanos ordered him to destroy any paper evidence of their existence and began filling them with earth and sand.

   “He told us he didn’t need a permit from us ... and he was going to go ahead and manipulate that site by any means possible,” said Charles Dodgers, a former DNR analyst now with the Department of Environmental Quality.

   Rapanos said the consultant’s later court testimony showed his wetland analysis had been flawed. While acknowledging workers spread the sand, Rapanos insisted the purpose wasn’t to fill wetlands, but to prepare the grounds for development.

   “When we got the cease-and-desist notices, we asked them to come and show us where the wetland was. They wouldn’t do it,” he said, contending there was only one small wetland, which he left untouched.

   After a mistrial, Rapanos was tried a second time and convicted.

   The district court later granted a new trial, ruling that improper questions had been asked about evidence taken during an illegal search. The Sixth Circuit disagreed and reinstated the verdict.

   At the sentencing hearing, District Judge Lawrence Zatkoff said the trial was unfair and rejected prosecutors’ demand for prison time, saying they wanted Rapanos punished more harshly than a drug dealer. “Now, if that isn’t our system gone crazy, I don’t know what is,” Zatkoff said.

   Breaking environmental law is no trivial matter, Peregord said in an interview.

   “When someone robs a bank, you can calculate right away how much money was taken. When someone destroys a wetland, you can’t immediately calculate the damage to the environment ... but it can be devastating.”

   Zatkoff fined Rapanos $185,000, which he has paid, and put him on probation for three years. Rapanos again appealed the conviction while the government appealed for a tougher sentence.

   It seemed he might get a break when the Supreme Court ordered lower courts to review the case in light of its groundbreaking ruling in 2001 that government doesn’t have unlimited authority over “isolated” wetlands — those not directly adjacent to a navigable waterway such as a lake or river.

   The Rapanos property is at least 11 miles from the nearest navigable waterway, the Kawkawlin River, a tributary of Lake Huron’s Saginaw Bay. The property is linked to the river by a ditch that flows into a creek.

   The district court again dismissed the charges against Rapanos, this time finding the government lacked jurisdiction over the disputed wetlands. But the appeals court reinstated the conviction, ruling that contaminating the wetlands eventually could damage the river.

   Property rights activists hoped the Supreme Court would use the Rapanos case to further curtail the government’s reach. But the court this month declined to revisit the matter.

   Rapanos expects to learn this summer whether he’ll go to prison as recommended by the Sixth Circuit court, although no sentencing date has been set.

   During a recent tour of the property, now leased for farming, he drove a mud-spattered SUV across bumpy terrain littered with broken corn stalks, halting at spots where regulators say wetlands once existed.

   “How can this be a wetland?” he demanded. “It’s insane, as far as I’m concerned.”

   His critics say Rapanos has only himself to blame.

   “I think environmental laws are as serious as any others, and we don’t allow people to break the law,” Peregord said.