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Special report: Vanishing wetlands

Wetlands in hands of high court

Three cases scheduled to be heard before the new Supreme Court likely will decide the fate of vast stretches of Florida.

By CRAIG PITTMAN AND MATTHEW WAITE
Published October 12, 2005

In a move that could have major implications for Florida's vanishing swamps and marshes, the U.S. Supreme Court agreed Tuesday to hear arguments over how much power federal regulators have to protect wetlands.

A ruling that limits federal power could wipe out protection for 300,000 acres of wetlands in the Florida Panhandle. It could also undermine the government's ability to prevent pollution, said Jon Kusler of the Association of State Wetlands Managers.

"Polluters all over the country could dump with impunity upstream from a major tributary," Kusler said.

A decision that supports federal power, on the other hand, could extend protection to thousands of acres of Florida wetlands where federal officials have hesitated to step in.

The question will offer new Chief Justice John Roberts his first chance to weigh in on limiting federal regulation of property rights. As an appeals court judge, he suggested in 2003 that federal power over private property should be limited.

The wetlands cases, which will be argued before the Supreme Court next year, involve a long-running debate over the 1972 Clean Water Act.

Under the act, wetlands are supposed to be protected because they aid flood control, filter pollution, recharge drinking water supplies and provide habitat.

Developers who want to fill in wetlands or dredge them must get permission from the U.S. Army Corps of Engineers. It can be a time-consuming process, but only rarely does the corps say no.

In fact, the corps approves more wetland permits in Florida than in any other state. Between 1999 and 2003 it approved more than 12,000 permits to wipe out wetlands and rejected only one.

A St. Petersburg Times analysis of satellite imagery found that in the past 15 years Florida has lost 84,000 acres of wetlands.

Yet property-rights advocates have frequently complained that the corps requires permits for destroying wetlands that were never intended to be covered by the Clean Water Act.

Federal jurisdiction extends only to navigable waterways and wetlands that are connected or adjacent to them.

"It does not make sense to put a puddle created by a truck tire during a rainstorm in the same . . . category as the Everglades," said National Association of Home Builders president Dave Wilson.

In 2001, by a 5-4 vote, the Supreme Court ruled that in one case out of Cook County, Ill., the property-rights advocates were right.

For years, the corps had justified protecting isolated wetlands that were not directly connected to navigable waterways because migratory birds used them as they traveled from state to state.

The high court said that was too big a stretch.

Would-be developers across the country quickly petitioned the corps to reclassify their wetlands as isolated.

A Florida phosphate company, for example, persuaded the corps to drop protection of 3,000 acres of wetlands near the Suwannee River. And a Tampa engineer persuaded the corps to drop 14,000 acres in Hernando County that drain into a sinkhole.

Because of the 2001 court decision, the Bush administration proposed cutting back on the corps' wetlands jurisdiction. More than 135,000 comments poured in, nearly all opposed to the change. The proposal was dropped.

Among the comments was a letter from the Florida Department of Environmental Protection which said that if the Cook County case were interpreted so broadly, more than 300,000 acres of wetlands in Panhandle would be unregulated and at risk for being wiped out. Two of the three cases the Supreme Court will hear hinge on how broadly to apply the 2001 decision, said Royal Gardner, a former corps attorney who teaches environmental law at Stetson University's College of Law. Does the Clean Water Act protect only wetlands directly abutting waterways, or can they be connected indirectly?

For instance, state officials say the water flowing into the Hernando County sinkhole, known as Peck Sink, probably gushes back to the surface either eight miles away at Weeki Wachee Springs, or 15 miles away at Chassahowitzka Springs. Should that require the corps protect the 14,000 acres of land that drain into Peck Sink?

Two of the three Supreme Court cases are out of Michigan, and both involve property owners trying to fill in wetlands.

In one, John Rapanos decided in 1988 to fill in areas of his 175-acre tract to sell it to a mall developer. Although his wetlands are 11 miles from the Kawkawlin River, they're connected via a man-made drain and a creek.

A consultant Rapanos hired warned him about wiping out wetlands. But "Rapanos asked the consultant to destroy any paper evidence of wetlands on his property and then threatened to fire him and sue if he did not comply," a federal court later wrote.

Although state and federal officials warned him he needed a permit, Rapanos proceeded without one and was convicted of willfully violating the Clean Water Act.

As his case bounced through the appeals courts, property-rights advocates portrayed Rapanos as a martyr.

The second Michigan case centers on 19 acres in Macomb County, where developers proposed destroying more than 15 acres of wetlands to build condominiums. A man-made ditch beside the property connects to a drain that flows into a creek feeding Lake St. Clair.

The Environmental Protection Agency and U.S. Fish and Wildlife Service opposed the project, and the corps denied the permit.

The developers sued, contending the wetlands were too far away from Lake St. Clair to be considered connected.

The issue in a third case the court will hear is what constitutes a "discharge" of pollution. The owner of hydroelectric dam projects on the Presumpscot River in Maine, which provide electricity for a paper mill, argues that the company should not be required to get permits just because water flows through the dams.

Staff researcher Caryn Baird contributed to this report, which includes information from the Associated Press.

[Last modified December 14, 2006, 15:37:53]