U.S. Supreme Court Declines to Set National Wetlands Law Straight

Contact: M. Reed Hopper

Phone: (916) 362-2833

Washington,DC; April 05, 2004: The U.S. Supreme Court today announced that it will not hear three high-profile cases asking the Court to clarify the constitutional limitations on federal authority to regulate wetlands under the Clean Water Act. One of the cases the High Court declined to review, Rapanos v. United States, was brought by Pacific Legal Foundation on behalf of John Rapanos, a Michigan landowner who will now serve at least 10 months in prison for failing to get a Clean Water Act permit. In addition, the Court rejected petitions for review in Newdunn Associates v. U.S. Army Corps of Engineers and Deaton v. United States, cases that also involve property owners facing federal penalties for federal permit violations. "Frankly, we're shocked that the Court chose not to hear these important cases," said PLF attorney M. Reed Hopper. "The Supreme Court reversed Mr. Rapanos' conviction nearly three years ago, and we're surprised that they would decline to do so this time around." "Mr. Rapanos' property is 20 miles from any navigable waterway and has no connection to interstate commerce. How many miles away does your property have to be from any legitimate connection to interstate commerce to be free from federal jurisdiction?" added Hopper. "The Supreme Court's decision not to take these cases means that the Bush administration must act now and issue a new rule explicitly stating what wetlands it will exert authority over and what wetlands remain under state control," said Hopper. "Without a real policy, property owners will be left in the dark, wondering if they are risking hundreds of thousands of dollars in penalties and even prison just for improving their property." Under the Clean Water Act, federal permitting authority extends only to "navigable waters," which have a direct connection to interstate commerce, and immediately adjacent wetlands. In 2001, the Supreme Court confirmed this limitation in its landmark decision, Solid Waste Agency of Northern Cook County v. U.S. (SWANCC). In the three years since the decision, however, the federal government has continued to misuse the Act to control local land use. At issue in all three cases that the Court declined to review was whether the federal government has authority over wetlands on private property that is miles from the nearest navigable waterway. This is not the first time Mr. Rapanos has been before the Supreme Court. In the mid-1990s, a federal District Court sentenced Mr. Rapanos to three years probation and fined him

$185,000 for filling wetlands on his property with clean sand without a federal permit. Despite the conviction, the District Court refused to send Mr. Rapanos to prison, finding the minimum penalty too harsh for a property owner merely improving his own land. Mr. Rapanos petitioned the U.S. Supreme Court, which reversed his conviction and sent the case back to the lower court, ordering it to reconsider the case in light of their decision in SWANCC. On remand, the trial court ruled in favor of Mr. Rapanos. Defiant federal bureaucrats, however, demanded Mr. Rapanos serve hard time and appealed the decision to the Sixth Circuit Court of Appeals. The Sixth Circuit adopted a very narrow reading of SWANCC, reinstating Mr. Rapanos' conviction, and ruled that he must serve the minimum 10-month prison term. In December, PLF asked the Supreme Court to take up Mr. Rapanos' case once again and overturn his conviction on the grounds that the federal government has no authority to regulate his property. "Mr. Rapanos is a landowner, not a criminal," said Greg Broderick, who also represents Mr. Rapanos. "He is not charged with polluting water or causing harm to the environment. He is going to prison for at least 10 months for not doing the paperwork to get a federal permit before improving his own property."

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To arrange interviews on this issue, journalists and producers may contact PLF's Media Director, Dawn Collier, at (916)362-2833.