Agenda - Planning Commission - 09/07/2006

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Page 2 - August 10, 2006 ZB. (. Wetlands - U.S. Supreme Court rules on Michigan challenges to the . Clean Water Act Court finds interpretation of 'navigable waters' too broad Citation: Rapanos v. United States, Supreme Court of the United States, Nos. 04-1034 and 04-1384 (2006). MICIDGAN (06119/06)- Rapanos wanted to build a shopping mall on prop- erty that he owned near the city of Midland. Three parcels of his land were considered wetlands; they each were connected to drains that eventually led to a river or lake. It was not clear if the connections were continuous or whether water flowed through the drains continuously or merely occasionally. Rapanos filled the wetlands without obtaining a permit. The United States brought civil proceedings against Rapanos, claiming .that the wetlands were under federal jurisdiction because they were "adjacent to other waters of the United States," and under the Clean Water Act (Act), a permit was necessary to fill the property. Rapanos was found liable for violations of the Act, and, on appeal, the 6th U.S. Circuit Court of Appeals affirmed the lower court's decision. The 6th Cir- cuit found that the wetlands were under federal jurisdiction because "there were hydrological connections between all three sites and corresponding adja- cent tributaries of navigable waters.." .. r. '. Another property owner, Carabell, wanted to build condominiums on prop- erty located about a mile away from a lake. A manufactured drainage ditch ran along one side of the property; the ditch was separated from the property by a four-foot, impermeable berm, or shoulder, which blocked drainage. Occasionally, water from the property might overflow the berm and enter the ditch. The ditch connected to another drain that emptied eventually into the lake. Carabell sought a permit to fill the wetland, but his request was denied. After exhausting his administrative appeals, Carabell sued the U.S. Army Corps of Engineers (Corps). The Corps was the body that "issue[d] permits for the dis- charge of dredged or fill material into navigable waters" as defmed by the Act. The trial court found in favor of the Corps, stating that there was federal jurisdiction, over Carabell's property because it was "adjacent to neighboring tributaries of navigable waters and [had] a significant nexus to 'waters of the United States.'" The Act defined "navigable waters" as "the waters of the United States, including the territorial seas," but the Corps broadened that definition to include tributaries of such waters, and wetlands adjacent to such waters and tributaries. The 6th Circuit upheld the lower court's ruling against Carabello Both Rapanos and Carabell appealed to the U.S. Supreme Court, and the cases were consolidated. DECISION: Judgments vacated; cases returned to lower courts for further proceedings. @ 2006 Quinlan Publishing Group. Any reproduction is prohibited. For more information please call (617) 542-0048. 90