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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 . “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


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