Menu

by Amy Beth Graves

Does the U.S. Army Corps of Engineers have the authority to regulate almost every U.S. wetland, even those not close to navigable waters?

This is a question the U.S. Supreme Court will consider next month when it hears two lawsuits – combined into one – involving Michigan landowners who have wetlands on their properties. The landowners were either denied the right to develop their property or were charged with altering wetlands. One landowner, John Rapanos, faces jail time and several millions of dollars in civil fines and fees for filling in wetlands without obtaining a permit from the Corps, according to Pacific Legal Foundation, which represents him.

Under the Clean Water Act, discharges of "fill" material or other substances are prohibited from being discharged into navigable waters without a permit. In the Michigan cases, while the property owners' wetlands were not near navigable waters, they eventually drained into navigable waters via drainage ditches and non-navigable creeks. The property owners contend that the Corps has the authority to regulate waters only if they are or could be navigable.

"We support federal Clean Water Act authority to regulate waterways used for transporting interstate and foreign commerce or for waterways that can be made navigable for these purposes with reasonable effort. But that authority should not include irrigation canals, culverts or ditches next to farmers' fields," said Adam Sharp, director of national affairs for Ohio Farm Bureau Federation.

The American Farm Bureau Federation has filed a brief in support of the two Michigan landowners, noting that the outcome of the Supreme Court's ruling could affect farmers, even those without wetlands on their properties. For example, if the Corps' interpretation of the Clean Water Act is allowed to stand, in theory farmers could be fined if manure they spread on their fields reaches a ditch that eventually makes its way to navigable waters, Sharp said.

AFBF President Bob Stallman said the extension of Clean Water Act provisions to any water that drains into a creek or river that eventually reaches navigable waters is an "illegal intrusion into our members' rights and states' authority to govern land and water use."

"Since enactment of the Clean Water Act over 30 years ago, the Corps has continuously sought to expand its regulation of private property beyond the original scope of the act," said Julie Anna Potts, AFBF's lead attorney.

Even the 6th U.S. Circuit Court of Appeals in Cincinnati, which eventually ruled in favor of the Corps, said it was difficult to reach a decision, saying "determining the precise boundary of which waters are covered by the CWA has been difficult."

The National Federation of Independent Business, the nation's largest small-business advocacy group, also has filed a brief in support of the two property owners, calling the federal regulations burdensome for property owners.

"The costs associated with obtaining federal wetlands permits are extremely difficult for small businesses to absorb and deter small businesses from expanding and creating new jobs," said Karen Harned, executive director of NFIB's Legal Foundation, in a news release.

The Supreme Court is scheduled to hear oral arguments in the case Feb. 21 and expected to issue a decision by June.