The United States Supreme Court denied certiorari today in three wetlands cases: NewDunn Associates v. United States Corps of Engineers, 03-637; Deaton v. United States, 03-701; and Rapanos v. United States, 03-929. According to a brief AP story, Deaton "involved a [Maryland] couple who dug a ditch on their property in Wicomico County without getting government permission first." Rapanos involved a Michigan man by that name who "was convicted of violating the Clean Water Act for filling his wetlands in Williams Township with sand to make the land ready for development." NewDunn involved "companies trying to develop wetlands in Newport News, Virginia."
There should be a lot more information available tomorrow -- these cases have garnered much publicity over the years. Meanwhile, here is the opinion of the 4th Circuit in NewDunn, which begins:
During the summer of 2001, without obtaining a permit from the Army Corps of Engineers (the "Corps") or the Virginia State Water Control Board (the "Board"), Newdunn Associates, Orion Associates, and Northwest Contractors (collectively "Newdunn") began ditching and draining wetlands on a forty-three-acre property near Newport News, Virginia (the "Newdunn Property"). Pursuant to its authority under the Clean Water Act ("CWA" or the "Act"), the Corps brought a civil enforcement action in federal district court. The Board initiated its own enforcement action in state court, premised on the Virginia Nontidal Wetlands Resources Act of 2000 (the "Virginia Act"). Newdunn removed the state action to federal court, and the two cases were consolidated. After a five-day bench trial, the district court ruled for Newdunn in both cases, finding that the Corps lacked jurisdiction over wetlands on the Newdunn Property under the Clean Water Act, and that the jurisdictional reach of Virginia law was merely coextensive with federal law. For the reasons stated below, we reverse.There were two Deaton 4th Circuit opinions. In Deaton I (4/7/2000) the Court stated:
The United States sued James and Rebecca Deaton, alleging that they violated ss. 301 and 404 of the Clean Water Act, 33 U.S.C. ss. 1311, 1344, by sidecasting dredged material as they dug a drainage ditch through a wetland. The district court ultimately awarded summary judgment to the Deatons, and the government appeals. We reverse, holding that sidecasting in a jurisdictional wetland is the discharge of a pollutant under the Clean Water Act. We dismiss the Deatons' cross-appeal for lack of appellate jurisdiction.In Deaton II (6/12/03):
This is the second appeal by James and Rebecca Deaton, who were sued by the government under the Clean Water Act (sometimes, "the CWA" or "the Act"), 33 U.S.C. § 1251 et seq., for failing to obtain a permit from the U.S. Army Corps of Engineers (the Corps) before digging a ditch and depositing excavated dirt in wetlands on their property. The Corps asserts jurisdiction because the Deatons’ wetlands are adjacent to, and drain into, a roadside ditch whose waters eventually flow into the navigable Wicomico River and Chesapeake Bay. The Deatons’ main argument is that the Corps has no authority over the roadside ditch, and thus the agency cannot regulate their wetlands. First, we hold that Congress’s power under the Commerce Clause to protect navigable waters allows it to regulate the dischargeRapanos v. United States (8/5/2003) is a 6th Circuit opinion:
of pollutants that flow into the ditch. Congress delegated part of this authority to the Corps in the Clean Water Act. The Corps, in turn, has promulgated a regulation, 33 C.F.R. § 328.3(a)(5), that extends CWA jurisdiction to tributaries of navigable waters. This regulation represents a reasonable interpretation of the CWA that is entitled to deference. The Corps interprets its regulation to cover the roadside ditch, and we also defer to that interpretation. Second, we hold that the district court did not err when it decided that the Corps used an appropriate indicator for wetland hydrology (prescribed by its Wetlands Delineation Manual) in designating parts of the Deatons’ property as wetlands. Finally, we affirm the district court’s remediation order, which requires the Deatons to fill in the ditch and restore their wetlands to their pre-violation condition.
This case arises from the criminal conviction of John Rapanos for unlawfully filling wetlands in Michigan in violation of the Clean Water Act, 33 U.S.C. § 1311(a). After the conviction, an appeal, a denial of certiorari, a second appeal, and a grant of certiorari, the Supreme Court remanded the case back to us to review in light of Solid Waste Agency of North Cook County v. Army Corps of Engineers, 531 U.S. 159 (2001). We remanded the case to the district court. The district court found that, in light of Solid Waste, Rapanos’s land was outside the jurisdiction of the Clean Water Act and the charges were dismissed. The United States now appeals this decision. For the reasons below, we REVERSE the judgment of the district court and REINSTATE the convictions.[Update 4/6/04] Linda Greenhouse reports this morning in the NY Times, at the end of her Supreme Court Roundup:
Wetlands Regulation. Without comment, the court turned down three cases challenging federal regulatory power over wetlands that are not directly connected to navigable waterways. Landowners, supported by the building industry, contested the government's interpretation of the Clean Water Act in light of a 2001 Supreme Court decision that rejected federal jurisdiction over isolated ponds visited by migratory birds.This story from the Hampton Roads Virginia Daily Press, headlined "Refusal by justices thwarts developer: The Supreme Court rejected a local case over 'isolated' wetlands, killing a development near Jefferson Avenue," includes these quotes:According to the Environmental Protection Agency and the Army Corps of Engineers, that decision was a narrow one that did not remove federal jurisdiction over wetlands that are part of the drainage area or tributary systems of navigable waterways. The plaintiffs and their allies pressed for a broader interpretation of the 2001 ruling.
One, John A. Rapanos, a Michigan landowner who acted without a permit to fill wetlands that were 20 miles from a navigable river, was criminally convicted and now faces a 10-month prison sentence.
NEWPORT NEWS - The Supreme Court will not use a strip of land in Newport News to set a nationwide precedent and clear up confusion over government regulation of isolated wetlands, according to a decision released Monday. Locally, that means a group of landowners called Newdunn Associates will not be able to develop 43 acres of land between Interstate 64 and Jefferson Avenue in upper Newport News.Posted by Marcia Oddi at April 5, 2004 08:16 PMNationally, developers, environmentalists and regulators were interested in the outcome of Newdunn Associates v. The U.S. Army Corps of Engineers. As is its custom, the Supreme Court offered no explanation Monday when it disclosed it would not hear Newdunn and two similar wetland cases in Maryland and Michigan. Conservationists and regulators are happy. Developers feel crushed.