Remote Control

A PROPERTY OWNER NEEDS A U.S. ARMY Corps of Engineers permit before depositing fill material in wetlands that are distant from, but hydrologically connected to, navigable waterways, under a ruling by a federal appeals court.

John Rapanos owned a 175-acre tract that contained forested wetlands located many miles from the nearest navigable water. Hoping to sell the land to developers, he decided to increase its value by clearing the trees and filling in the wetlands. When his lawyer showed the development plan to state environmental authorities, they noted the wetlands and informed him that Rapanos would need a permit before beginning any such work. They suggested that a consultant could help with the permit application.

Rapanos hired a consultant who found at least 50 acres of wetlands. After receiving the report, Rapanos ordered him to destroy any paper evidence of wetlands on the property, and fired him when he did not do so. Then, ignoring warnings and a cease-and-desist order from state and federal authorities, Rapanos filled in the wetlands with earth and sand.

Subsequently, federal prosecutors charged Rapanos with violating the Clean Water Act (CWA) by knowingly discharging pollutants into waters of the United States without a permit. For his part, Rapanos admitted filling the wetlands, but insisted that the CWA required a permit only for areas directly abutting navigable water.

After a jury found Rapanos guilty, he appealed his conviction all the way to the U.S. Supreme Court. The high court overturned his conviction and remanded the case for further consideration in light of Solid Waste Agency of Northern Cook County v. Corps of Engineers, 531 U.S. 159. (SWANCC) [See related story, Waste Age, April 2001, p. 114]

The case returned to federal district court, which dismissed the charges, finding that, under the SWANCC decision, the Corps had no authority over wetlands not “directly adjacent to navigable waters.”

On appeal, the U.S. Court of Appeals for the Sixth Circuit ruled that the district court had incorrectly interpreted the SWANCC case. That decision, the appeals court said, held that the Corps could not regulate non-navigable isolated ponds simply because they were home to migratory birds that attract hunters and watchers nationwide. Instead, the appellate panel relied on U.S. v. Riverside Bayview Homes Inc., 474 U.S. 121 (1985) where the high court held that “waters of the United States” included “all wetlands adjacent to other bodies of water over which the Corps has jurisdiction.”

The appeals court rejected the argument that the CWA covered only wetlands directly abutting navigable waters. Citing both the SWANCC and Riverside Bayview decisions, which pegged Corps jurisdiction to a “significant nexus” between the wetlands and navigable waters, the Sixth Circuit held that the Corps had jurisdiction over an entire tributary system. Here, the evidence established that the wetlands on Rapanos' land were adjacent and hydrologically connected to a drain, which empties into a navigable river. The court reinstated Rapanos' conviction.

[U.S. v. Rapanos, 339 F.3d 447 (6th Cir. 2003)]

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail: [email protected].

The columnist is a Rockville, Md., attorney and serves as general counsel of the Solid Waste Association of North America.