Supreme Court decision in Michigan case may influence conservation laws nationwide

© 2006 Wendy Dager

Parallel to the recent Supreme Court decision regarding eminent domain, in which the government can seize private property to build upon for public use, two Michigan landowners are now fighting to eliminate federal laws that regulate the development of privately-owned wetlands.

     These laws, which have been in place for over 30 years under the Clean Water Act (http://www.epa.gov/r5water/cwa.htm), give the Army Corps of Engineers and the United States Environmental Protection Agency the responsibility for survival of wetlands' plants and animals, as well as managing groundwater by filtering pollutants and lessening the threat of floods due to stormwater runoff.

     When wetlands are filled in, rain and snowmelt are no longer absorbed, allowing stormwater to cross the landscape unhampered, picking up pesticides, animal waste and other pollutants, then dumping them into the nearest body of water. (See "Construction Site Pollution Federal Priority, http://www.ssseeds.com/leaf-let/constructionsitepollution.htm.)

     Wetlands are believed to be natural buffers that can protect entire cities, suggesting that the destruction caused by Hurricane Katrina in 2005 could have been mitigated had wetlands formerly surrounding Louisiana and Mississippi still been in place.

     In Michigan, however, lawyers for the two landowners say that the federal government has no constitutional authority over "remote waters" and that the Army Corps of Engineers should not be entitled to "jurisdiction over the entire watershed." Their argument in the pending Supreme Court case is that the Clean Water Act is being used as a tactic to federally control sites that should fall under the jurisdiction of individual states.

     People concerned about clean water disagree, saying that, although the pollutant-trapping wetlands in the Michigan case are considered "tributaries" and are not situated next to a large body of water, their destruction will cause pollutants to travel to Lake Huron, 20 miles away.

     The attorneys general of Michigan and New York agree with this assessment and are leading 34 states and the District of Columbia in backing federal authority to regulate wetlands with indirect links to navigable waters.

     According to S&S Seeds' Paul Albright, this is the correct course of action.

     "When wetlands are eliminated, the normal hydrology is destroyed, meaning runoff rates are higher," said Paul. "Water flows downstream and, with it, pollutants."

     But can the federal government tell you what to do with your property? What if your intended use affects the environment? Or could it be profitable to keep wetlands intact instead of destroying them for development?

     Paved Paradise, Put up a Parking Lot

     In 2002, freshwater marshes in Canada were converted into an agricultural area (http://www.ssseed.com/leaf-let/savetheenvironment.htm). Even though the conversion was profitable, researchers estimated that the area would be worth 60 percent more if wetlands had been left intact, allowing for continued hunting, trapping and fishing.

     Conversely, Michigan landowner John Rapanos, whose case is currently before the Supreme Court, believes his wetlands should be turned into a shopping center. According to Gannett News Service, Rapanos has already "destroyed 54 acres of wetlands on three parcels of land in Bay, Midland and Saginaw counties in Michigan between 1988 and 1997, refusing state and federal regulators' orders to stop and apply for the necessary permits."

     His case in the Supreme Court has been combined with that of June Carabell's, whose request to eliminate 15 acres of wetlands in Macomb County, Michigan, to make room for a condominium development, was rejected by the Army Corps of Engineers.

     Is this a matter of our government protecting the environment or merely an extension of eminent domain?

     Pleading the Fifth

     The Fifth Amendment to the Constitution of the United States of America states, "No person shall...be deprived of...property without due process of law, nor shall private property be taken for public use, without just compensation."

     While these lands are not being taken from the owners, they, at this time, are not free to build upon them as they'd like, hence the Supreme Court battle.

     Is there a compromise?

     "We're all for property rights," said Paul Albright. "And we do understand that there's always going to be new construction. But landowners need to realize they have an obligation to the environment, and to future generations."

     That's why S&S Seeds offers its expertise in helping to find a balance between development and conservation.

     For instance, in 2003, S&S Seeds participated in the Ballona Wetlands salt marsh restoration project in Los Angeles (http://www.ballona-wetlands.org/), providing seeds and wildflower mix.

     The restored wetlands will be home to more than 3,000 trees and 10,000 shrubs and is also a natural stormwater management system, removing contaminants before water enters the Santa Monica Bay.

     If you want to learn more about environment-friendly stormwater mitigation, call us at (805) 684-0436. No sense turning your project into a federal case.
 

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