As reported here in the Indiana Law Blog, on April 5, 2004 the U.S. Supreme Court denied three wetlands appeals, including Rapanos v. United States. As Linda Greenhouse of the NY Times reported the following day:
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.Now, according to this CNN story, posted 4/30/04: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.
WILLIAMS TOWNSHIP, Michigan (AP) -- John A. Rapanos has spent more than $1 million on attorneys, consultants and fines while tussling with regulators for some 15 years over accusations of illegal wetland destruction. Now the Midland subdivision developer appears headed for prison in a case highlighting the nationwide debate over the extent of government power to protect privately owned wetlands.Today's NY Times has this story, headlined "Michigan Landowner Who Filled Wetlands Faces Prison." Some quotes:Rapanos was convicted in 1995 of filling wetlands without a permit in mid-Michigan farm country. His case has been on appeal but may have run its course as the U.S. Supreme Court recently declined to consider it. No sentencing date has been set, but the Sixth U.S. Circuit Court of Appeals in Cincinnati earlier recommended a prison term of 10 to 16 months.
In some ways, the Rapanos case is a reminder of the resistance to environmental enforcement as a legitimate government function, particularly when it comes to wetlands issues. The definition of what qualifies as wetlands and what wetlands fall under federal jurisdiction has been an issue in numerous court cases.Posted by Marcia Oddi at May 18, 2004 07:40 AMA Supreme Court ruling four years ago gave developers and property-rights advocates hope that the definitions would be rolled back. But recent appellate court rulings, which the Supreme Court declined to review at the same time it refused to hear Mr. Rapanos's appeal of his conviction, have reaffirmed most of the broad definitions.
Those rulings indicate that a wetland can be regulated if it is connected directly or through tributaries to navigable waters; for instance, if it is adjacent to stream or drainage ditches that feed them.
Federal and state officials decide what is a wetland based, in part, on the presence of water and the types of soil, plants and shrubs that are on the property. Most of the estimated 105.5 million acres in the contiguous United States that are considered wetlands remains on private land, like Mr. Rapanos's.
When Mr. Rapanos, who is 68, was prosecuted in the mid-1990's, criminal cases under the Clean Water Act were rare; most involved the dumping of toxic chemicals or refuse into streams or storm drains. Prosecutions for filling wetlands were rarer still.