PLF
Asks U.S. Supreme Court to Reaffirm Landmark
Wetlands Decision–
Urges Action in Three Cases That Could
Dramatically Change National Policy
Pacific Legal
Foundation, 1/26/04
Washington,DC;
January 26, 2004: Pacific Legal
Foundation today filed its third
legal brief since December asking the U.S.
Supreme Court to tell the federal government to
stop their unlawful power grab over intrastate
waters under the guise of the Clean Water Act.
In December, PLF filed a
petition for review with the High Court on
behalf of its client, John Rapanos, in a case that
has the potential to effect sweeping changes to
national policy regarding wetlands regulation
(Rapanos v. United States).
Today, PLF filed an amicus curiae
brief urging the Court to take up another
wetlands case,
Deaton v. United States,
which raises similar legal issues. PLF also filed
an amicus
brief in a third case,
Newdunn Associates v.
U.S. Army Corps of Engineers, last
month. The Bush administration has until the end
of the week to respond to each case.
In all three cases, PLF is asking the Supreme
Court to reaffirm its landmark 2001
decision, Solid Waste Agency of Northern
Cook County v. U.S. (SWANCC), which restricts
federal authority over isolated wetlands under the
Clean Water Act. In that high-profile case, the
Court ruled that federal authority under the Clean
Water Act is limited to traditional navigable
waters and wetlands adjacent to such waters.
According to PLF, the High Court’s decision
correctly interpreted the original intent and
constitutional limits of the Act, which have long
been used by the federal government and
environmental activists as a tool for expanding
federal authority over local land use. In
December, the Bush administration buckled under
pressure from environmental organizations and
withdrew draft wetlands regulations that sought to
comply with the Court’s ruling.
“The Supreme Court was clear that states, not the
federal government, have authority over wetlands
that are not related to interstate commerce,” said
PLF attorney
Reed Hopper.
“Three years later, the federal government and
some federal courts still refuse to enforce the
law. We’re asking the Court to put these disputes
to rest.”
“Property owners have a right to know what the law
is,” said Hopper. “Most property owners don’t have
the means to challenge the government over a Clean
Water Act permit, which on average takes more than
two years to obtain and costs over $270,000.
Government agencies are stringing property owners
along until they must either give in to
unreasonable demands or give up on the permit
process.”
The Associated Press describes Rapanos’
case as one that “[p]roperty rights advocates
hope—and environmentalists fear” will result in a
landmark ruling. John Rapanos, a small Michigan
developer, is facing a minimum of 10 months in
federal prison for placing clean sand in the
wetlands on his property without a federal permit.
PLF argues that the federal government does not
have jurisdiction over his property because the
nearest navigable waterway is over 20 miles away.
Three years ago, the U.S. Supreme Court reversed
Mr. Rapanos’ conviction on the same day it issued
the SWANCC decision. The Justices sent
Rapanos’ case back to the lower court, ordering it
to reconsider the case in light of SWANCC. On
remand, the trial court ruled in favor of Rapanos,
but the government again appealed the decision to
the Sixth Circuit Court of Appeals. According to
PLF, the Sixth Circuit defied SWANCC,
distorting the clear intent of the ruling, and
upheld Rapanos’ conviction. In December, PLF asked
the Supreme Court to take up Rapanos’ case once
again.
While Rapanos v. United States is on appeal
from the Sixth Circuit, Deaton and
Newdunn are both on appeal from the Fourth
Circuit Court of Appeals. Although all three cases
involve property owners who face federal penalties
for filling isolated wetlands on their own
property, Rapanos is the only petitioner facing
federal prison time.
“These cases are not about the environment. They
are about the clear constitutional limits on
federal authority,” added Hopper. “Local
environment and land use regulation have always
been the constitutional domain of state and local
governments. Congress recognized that in the plain
language of the Clean Water Act 30 years ago.”
Additional Information
Other PLF wetlands-related cases, op-eds, and
press releases
Congressional Subcommittee on Energy Policy,
Natural Resources and Regulatory Affairs
