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E-M:/ key ruling in michigan wetlands case

Enviro-Mich message from "Dave Dempsey" <davemec@voyager.net>

In an opinion filed yesterday, the U.S. Sixth Court of Appeals has 
reversed a district court and ruled in favor of the U.S. government in 
a long-running Michigan criminal wetlands enforcement case. The 
defendant was John Rapanos and the wetland affected is in Williams 
Township of Bay County.

According to the opinion, in 1988 or 1989, "Rapanos hired a consultant, 
who found at least forty-nine and at most fifty-nine acres of wetlands. 
After receiving the report, Rapanos asked the consultant to destroy any 
paper evidence of the wetlands on his property and then threatened to 
fire him and sue if he did not comply. Despite warnings from the 
Michigan Department of Natural Resources and the United States 
Environmental Protection Agency, Rapanos began destroying the wetlands 
on his property by filling them with earth and sand."

The court's ruling is particularly significant in light of a holding on 
federal jurisdiction over waters of the United States:

"As common sense makes clear, the Clean Water Act cannot purport to 
police only the navigable-in-fact waters in the United States in order 
to keep those waters clean from pollutants. A pollutant can contaminate 
non-navigable water and pollute the navigable-in-fact waters 
downstream. Congress acknowledged this reality when it created the 
Clean Water Act, stating, “Water moves in hydrological cycles and it is 
essential that discharge of pollutants be controlled at the source.” 
S.Rep. No. 92-414, at 77 (1972)...Any contamination of the Rapanos 
wetlands could affect the Drain, which, in turn could affect navigable-
in-fact waters. Therefore, the protection of the wetlands on Rapanos’s 
land is a fair extension of the Clean Water Act."

The decision is posted on-line here:



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