- Peace Garden: Court Splits Over Wetlands Protections

Court Splits Over Wetlands Protections

Monday, June 19, 2006

Court Splits Over Wetlands Protections

The Supreme Court set the stage for a re-examination of the 1972 Clean Water Act, as it narrowly ruled today in favor of two Michigan property owners who have sought to develop tracts designated as wetlands.
By 5 to 4, the justices overturned lower court judgments against the Michigan land owners, who had run afoul of the Clean Water Act over their plans to build a shopping mall and condominiums.
For purposes of the 1972 Clean Water Act, wetlands are defined as "those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas." When the Rapanos and Carabell cases were argued on Feb. 21, a lawyer for Mr. Rapanos said a strict reading of the legislation showed that Congress gave specific authority to regulate only navigable waters and any neighboring wetlands.
Mr. Rapanos's case involves three wetlands, one of which is 20 miles from a navigable waterway but next to a drainage ditch that flows into a river. Land owned by Keith and June Carabell includes a wetland tract separated from navigable water by an earthen berm and by impermeable clay below ground.
I have been involved in land trusts for many years. When the land trust received a large tract of wetlands, an abutting neighbor commented that it was no big deal that the land trust took the land since it was designated as wetlands and protected by law. I commented that the law is no guarantee. Commissions change, Congress changes, greed is all-encompassing.

Proof positive with this case.

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