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Published: Monday, 1/23/2006

Land-use ruling may decide fate of wetlands

BY TOM HENRY
BLADE STAFF WRITER

A landmark wetlands case that the U.S. Supreme Court will hear Feb. 21 could have huge implications for the continued efforts to restore western Lake Erie, Great Lakes advocates said.

At stake is not only valuable habitat for waterfowl and other wildlife - but also some important acreage that helps with flood control and with preventing runoff pollution from entering rivers, lakes, and streams.

Ohio historically ranks second to California for wetlands destruction.

Ottawa County has many of the most valuable wetlands that remain in Ohio.

Leading the fight to preserve them is Mark Shieldcastle and Steve Barry of the Ohio Department of Natural Resources. Mr. Shieldcastle is chief of the agency's Crane Creek Wildlife Research Station at Magee Marsh in Ottawa County.

"The bottom line is, we're in bad shape as it is. This [Supreme Court case] is going to have a major ramification for the status quo. You could say we have no way to win if we lose this case," Mr. Shieldcastle said.

The court will decide two land-use battles involving Michigan residents.

June and Keith Carabell were denied a permit to fill in 15 acres of forested wetlands to facilitate construction of a 112-unit condominium project in southeastern Michigan's Macomb County.

John Rapanos, 70, filled in 54 acres of wetlands in Midland, Bay, and Saginaw counties in the late 1980s without first obtaining the required federal permits.

The federal government is seeking $13 million in fines and fees and wants an order that would require him to permanently set aside 80 acres as wetlands.

On appeal is a lower court judge's sentence of three years probation and a $185,000 fine for Mr. Rapanos.

Mr. Rapanos' attorney, Reed Hopper of the Pacific Legal Foundation in Sacramento, told The Blade last week that his opponents have overblown the environmental fears.

He said the case pits private property rights against the federal government's abuse of power.

"This is not only a property rights case. It's a civil rights case," said Mr. Hopper.

Mr. Rapanos wanted to sell his property to a shopping mall developer. The land he filled is 20 miles from Lake Huron, but connected to tributaries that flow into it, according to court records.

Mr. Hopper said his client's case illustrates how the government has seized power and denied people their constitutional property rights by using the 1972 Clean Water Act as justification for regulating wetlands isolated from navigable bodies of water.

"We raise a constitutional challenge to the regulation in this case," said Mr. Hopper.

The California attorney argues that states should have authority over isolated wetlands, not the federal government. He warns that a victory by the federal government could result in an erosion of civil liberties in other areas.

But Mr. Hopper's claim isn't endorsed by attorneys general of 34 states, plus the District of Columbia. On Thursday, the attorneys general filed a joint friend-of-the-court brief, known as an amicus curiae brief, with the U.S. Supreme Court in support of the status quo.

State officials argue that their water programs are tied to federal definitions and authority.

Weakening wetlands laws at the federal level "may compromise implementation of important state programs," the brief said.

The Clean Water Act, widely seen by legal scholars as a historic environmental law, is viewed by government officials as their greatest source of ammunition against would-be water polluters.

Today's tough water regulations for sewage plants and industrial plants are, in fact, steeped in the 1972 Clean Water Act. Yet many claim the legal definition of how the act applies to wetlands is murky.

The case seeks to clarify a 2001 ruling in which the Supreme Court, by a 5-4 decision, struck down a federal rule requiring a permit for the dredging or filling of wetlands visited by migratory birds.

U.S. Rep. John Dingell (D., Dearborn) is one of many past and current members of Congress who on Jan. 13 filed their own joint amicus brief.

The signatories argue that Congress intended to have the federal government wield the power it now does over wetlands.

The consolidated case, Carabell vs. U.S. Army Corps of Engineers and Rapanos vs. United States, certainly appears to have struck a nerve.

As of last week, no fewer than 25 amicus curiae briefs had been filed either jointly or individually by dozens of major industry, environmental, and policy groups, including the National Association of Home Builders, the International Council of Shopping Centers, the American Petroleum Institute, Croplife America, the American Farm Bureau Federation, the National Association of Waterfront Employers, Ducks Unlimited, Earthjustice, and the Chesapeake Bay Foundation.

Nationally, Ducks Unlimited estimates that more than half of America's 100 million acres of wetlands could be affected by the ruling.

So could America's 82 million hunters, anglers, and wildlife-watchers who spend $108 million a year on outdoor activities, the group said.

Contact Tom Henry at: thenry@theblade.com or 419-724-6079.


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