U.S. asked to explain policy on ceding wetlands control

John Rapanos of Midland, Mich., who had filled in 54 acres of wetlands, was at the center of the case on constitutional private property rights. The Supreme Court ruled in his favor in June.

In the wake of a historic Supreme Court ruling that strips government control over isolated wetlands, the foundation that successfully brought the case wants to know how that power will be relinquished.

The Sacramento-based Pacific Legal Foundation yesterday announced it has petitioned the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers to rewrite "waters of the United States" definitions so that would-be developers can fill in wetlands separated from navigable streams and other large bodies of water.

"We're adamant about constitutional private property rights," said attorney Reed Hopper, the foundation's lawyer who presented the case to the Supreme Court last fall.

Government officials, sportsmen, and environmental activists have called the case, based largely on a claim by Michigan resident John Rapanos, one of the biggest assaults on the 34-year-old Clean Water Act. Thousands of wetlands - marshes that filter contaminants, provide wildlife habitat, and help control floods - are at risk, they have said.

Mr. Hopper said his client's private property rights were trampled upon by bureaucrats who had abused their far-reaching power under that act. "The public has been subjected to inconsistent and unenforceable regulation under the Clean Water Act," he said.

In June, the Supreme Court sided with Mr. Rapanos, who had been fined $13 million for illegally filling 54 acres of wetlands in Michigan's Saginaw Bay region in the late 1980s. Mr. Rapanos claimed he was within his right because the wetlands he filled were 20 miles from Lake Huron. Authorities have maintained they were connected by a series of ditches, streams, and tributaries that flow into the lake.

The Supreme Court's ruling was vague about how the government's control should be limited.

The interpretation of it has huge implications for the Great Lakes region. Northwest Ohio has numerous pockets of marshy land that some people believe are hydrologically separated from western Lake Erie, the Maumee River, and other watersheds.

Dale Kemery, U.S. EPA spokesman, said his agency had no comment about the foundation's petition. But he said a joint U.S. EPA-Corps policy guidance that may or may not address all of the foundation's demands is expected to be released next week. Dave Hewitt, Corps spokesman, was not available.

Gildo Tori, spokesman for Ducks Unlimited's Great Lakes office in Ann Arbor, said developments are being closely monitored.

Jim Murphy, a National Wildlife Federation attorney, said environmental groups are pinning their hopes on a congressional bill to clarify the Clean Water Act's intent. "If Congress steps in, then all ambiguities would be cleared up," he said. "Obviously, this Congress hasn't jumped at every chance to pass strong environmental legislation."

One of the House's most senior members, U.S. Rep. John Dingell (D., Dearborn), was among several past and current congressmen who signed a brief on behalf of the government before the case was heard. They said it was their intent to have isolated wetlands covered by the Clean Water Act.

-Tom Henry