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·	Press Releases
	·		EPA, Army Corps Extend Public Comment Period for Joint Rapanos Guidance
	·		Carabell/Rapanos Guidance Released June 5, 2007
·	Rapanos/Carabell Supreme Court Decision
·	Media Coverage - Carabell/Rapanos
·	Briefs
·	Friends of the Court Briefs from States and State Organizations (on behalf of the United States)
·	Friend of the Court Brief (on behalf of Carabell/Rapanos) Which Included Utah and Alaska
·	Additional Information on Carabell/Rapanos
·	Maps and Pictures of Carabell and Rapanos Sites

RAPANOS/CARABELL

Press Releases

EPA, Army Corps Extend Public Comment Period for Joint Rapanos Guidance Contact: Enesta Jones, (202) 564-4355; jones.enesta@epa.gov EPA and the U.S. Army Corps of Engineers (Corps) are extending the public comment period for the interagency joint guidance on the scope of Clean Water Act geographic jurisdiction following the U.S. Supreme Court's decision in Rapanos v. United States. The public comment period has been extended 45 days and comments on the guidance and experiences with its implementation are now due by January 21, 2008. EPA and the Corps issued the guidance in June 2007, consistent with the Supreme Court's decision in the consolidated cases Rapanos v. United States and Carabell v. United States regarding the scope of the agencies' jurisdiction under the Clean Water Act. The guidance supports a strong regulatory program that ensures no net loss of wetlands, which is one of three key elements to the Bush Administration wetlands policy. The other two elements include an active management program that will result in the restoration, enhancement and protection of 3 million acres of wetlands by 2009 and a commitment to conserve isolated wetlands such as prairie potholes. During the early implementation of the guidance, the agencies are inviting public comments on case studies and experiences in applying the guidance. Comments can be submitted to docket EPA-HQ-OW-2007-0282 through www.regulations.gov. The agencies, within nine months after the Rapanos guidance has been issued, intend to either re-issue, revise, or suspend the guidance after carefully considering the public comments received and field experience with implementing the guidance. For more information, see: http://www.epa.gov/owow/wetlands/guidance/CWAwaters.html

Carabell/Rapanos Guidance Released June 5, 2007. The guidance and related documents are posted to the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers websites.

U.S. Environmental Protection Agency: http://www.epa.gov/

·   EPA, Army Corps Issue Joint Guidance to Sustain Wetlands Protection Under Supreme Court Decision   ·   Clean Water Act Definition of "Waters of the United States"   ·   Legal Memorandum: Clean Water Act Jurisdiction Following the U.S. Supreme Court Decision in Rapanos v. United States & Carabell v. United States (PDF)   ·   Memorandum of Agreement (PDF)   ·   June 2007 Questions and Answers (PDF)

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Rapanos/Carabell Supreme Court Decision

Carabell/Rapanos Decision and Dissenting Opinions

ASWM Analysis of Supreme Court Decision in Carabell/Rapanos (added 8-21-06)

Carabell/Rapanos: Transcript of Oral Arguments Before the Supreme Court

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Media Coverage

EPA Inspector General Report - Effect of Rapanos case

The EPA Office of Inspector General (OIG) has recently issued a new report that is now available at http://www.epa.gov/oig  under "Recent Releases:"  "Congressionally Requested Report on Comments Related to Effects of Jurisdictional Uncertainty on Clean Water Act Implementation," dated April 30, 2009, http://www.epa.gov/oig/reports/2009/20090430-09-N-0149.pdf  This is in response to a congressional request asking that the OIG provide information we have collected on the impact of the Rapanos case on Clean Water Act enforcement.

Wetlands Case Highlights Fragility of Property Rights

By Reed Hopper – Editorial – Detroit News – January 29, 2009 After hundreds of thousands of dollars in attorneys fees and 14 years of court battles with no end in sight, Michigan's John Rapanos finally gave up his fight to defend himself against accusations that he illegally filled wetlands on his private property in violation of the Clean Water Act. Despite winning his case in the U.S. Supreme Court, Rapanos recently settled it with the federal government. He agreed to pay fines and mitigation fees approaching $1 million. Federal prosecutors immediately hailed the settlement as a vindication of their virtually limitless power to regulate local wetlands nationwide. For full editorial, go to: http://detnews.com/apps/pbcs.dll/article?AID=/20090129/OPINION01/901290324

John Rapanos agrees to pay for Clean Water Act violations

(Washington, D.C. - Dec. 29, 2008) John A. Rapanos and related defendants have agreed to pay a civil penalty and recreate approximately 100 acres of wetlands and buffer areas to resolve violations of the Clean Water Act at three sites in Midland and Bay counties, Michigan, the Justice Department and U.S. Environmental Protection Agency announced today. Rapanos has agreed to pay a $150,000 civil penalty and will spend an estimated $750,000 to mitigate for 54 acres of wetlands that were filled without authorization under the Clean Water Act. Rapanos has also agreed to preserve an additional 134 acres of wetlands that were unaffected by the unauthorized activity. Under the agreement, the preservation of these areas will be enforced via a conservation easement held by the State of Michigan. "After litigating this case for a number of years, we are pleased to reach a settlement that so strongly benefits the environment and serves the public interest," said Ronald J. Tenpas, Assistant Attorney General for the Justice Department's Environment and Natural Resources Division. "This longstanding case demonstrates that EPA continues to vigorously pursue violations of the Clean Water Act that adversely affect wetlands," said EPA Regional Administrator Lynn Buhl. "The settlement will benefit the environment in Bay County by preserving a substantial amount of wetlands that play a vital role in water quality, flood control and fisheries." The original enforcement action was filed against Rapanos in 1994 and the case drew national attention after the District Court ruling was appealed to the U.S. Supreme Court and subsequently sent back to the U.S. District Court for further proceedings. Rapanos challenged EPA's findings that the filled wetlands were under federal jurisdiction under the Clean Water Act. The litigation determined that Rapanos did fill wetlands under federal jurisdiction. In the late 1980s and early 1990s, Rapanos attempted to level three different parcels of land by uprooting vegetation and filling low spots with sand and dirt. He also dug an extensive network of ditches to dry out the sites, which resulted in excavated dirt being sidecast into wetlands. The parcels of land were intended to be developed for a shopping mall and residential homes. There is a parallel criminal matter that is still pending and is not affected by the settlement under the agreement. The proposed consent decree, lodged in the U.S. District Court in Detroit, is subject to a 30-day comment period and final court approval. A copy of the proposed consent decree is available on the Justice Department Web site at www.usdoj.gov/enrd/Consent_Decrees.html.

Revised Guidance addressing Clean Water Act jurisdiction following Rapanos decision

EPA News Release – December 3, 2008 On June 5, 2007, the Environmental Protection Agency (EPA) and the Department of the Army issued guidance clarifying Clean Water Act (CWA) jurisdiction following the U.S. Supreme Court’s decision in the consolidated cases Rapanos v. United States and Carabell v. United States. The agencies received 66,047 public comments on the Rapanos Guidance (65,765 form letters, 282 non-form letters), from States, environmental and conservation organizations, regulated entities, industry associations, and the general public. EPA and the Department of the Army jointly reviewed the comments and released a revised version of the guidance on December 2, 2008 in consideration of those comments and consistent with the agencies' experience implementing the guidance. The revised guidance and a set of questions and answers on the guidance are posted at: http://www.epa.gov/owow/wetlands/guidance/CWAwaters.html  Specifically three documents have been revised: For the revised Q&A, go to: http://www.epa.gov/owow/wetlands/pdf/Rapanos_%20Guidance_QA%20120208.pdf For the revised guidance, go to: http://www.epa.gov/owow/wetlands/pdf/CWA_Jurisdiction_Following_Rapanos120208.pdf For the revised comments, go to: http://www.epa.gov/owow/wetlands/pdf/Comments_Response_120208.pdf For a related press release, Revised EPA “Guidance” Amplifies Need for Clean Water Restoration Act by National Wildlife Federation, Contact: Aileo Weinmann – December 4, 2008 “The revised Guidance clearly points to the need for Congress to clean up the legal mess and restore full protections to our Nation’s waters.” For press release, go to: http://ww.pennnet.com/display_article/347036/41/ARTCL/none/none/1/Revised-EPA-

Supreme Court declines to grant review of Rapanos related case

By Jim Murphy (National Wildlife Federation) - Michigan Wetland Action Coalition News – October 10, 2008 --On October 6, the Supreme Court denied "certiorari" in Lucas v. US, a case involving an appeal from the Federal Court of Appeals for the Fifth Circuit where that court found that wetlands in Mississippi which had been polluted by a developer due to the unpermitted placement of fill and septic waste into the wetlands were protected under the Clean Water Act because the wetlands met the tests put forth in all three major opinions in Rapanos.   Denying certiorari means the Court declined to accept the appeal, leaving the lower court decision to stand. It is worth noting that the Supreme Court has been asked to grant review to another Rapanos related case, the McWane case.  In that case a government verdict was overturned because the Federal Court of Appeals for the Eleventh Circuit found the government failed to prove Avondale Creek in Alabama, which was being polluted by dumping of industrial waste by a manufacturer, had a "significant nexus" to the navigable downstream river into which the creek eventually flowed.  Avondale Creek is a perennially flowing stream.  The Eleventh Circuit ruled, however, that the plurality test of "relatively permanent" cannot in any instance be used and that a significant nexus must be demonstrated even for non-navigable perennial streams.  The government is asking the Supreme Court to review and overturn this decision.  A decision on whether the Supreme Court will take this case is pending. The order denying certiorari in the Lucas case is at: http://www.supremecourtus.gov/orders/courtorders/100608zor.pdf   For a link to Michigan Wetland Action Coalition, visit: http://www.michiganwetlands.org/index.html

U.S. seeks clarity on Rapanos ruling

By Lyle Denniston – Scotus Blog – August 25, 2008 The U.S. government, arguing that the lower courts have fallen into confusion and disagreement over federal power to protect wetlands, has urged the Supreme Court to make clear what it meant in the “highly fractured” ruling two years ago in Rapanos v. U.S. (04-1034) — a significant decision on the scope of the Clean Water Act. The Justice Department filed an appeal Thursday on that issue in U.S. v. McWane, Inc., et al. (docket 08-223). For full blog entry, go to: http://www.scotusblog.com/wp/us-seeks-clarity-on-rapanos-ruling/

Corps action on Santa Cruz riles congressmen

By Dick Kamp – Nogales International – August 12, 2008 The chairmen of two influential congressional committees are challenging the basis being used by the U.S. Army Corps of Engineers and the Environmental Protection Agency to determine "navigability" of the Santa Cruz and the Los Angeles rivers. 2006 decision - Such a determination has been necessary since the 2006 U.S. Supreme Court decision in United States v. Rapanos which greatly reduced the authority of the Clean Water Act. Failure to get a navigability determination may mean that the Act does not protect all or parts of a stream or any of its tributaries from potential polluters. For full article, go to: http://www.nogalesinternational.com/articles/2008/08/12/news/news6.txt

Wetlands Delineation and Jurisdictional Determination: Post Rapanos-Carabell

May 19 - 23, 2008 - Raleigh and New Bern, NC – NC State University - The 10th anniversary edition of the NC State University wetland delineation course has been extensively revised and updated to reflect the tremendous changes in methods of wetland delineation and jurisdictional determination that have been introduced by the U.S. Army Corps of Engineers (Corps) since the course was last offered in May, 2007. For more information, go to: http://www.ces.ncsu.edu/nreos/forest/feop/wetlands/index.html

Corps Rejects Industry Bid for Retroactive Wetlands Permit Reviews

The U.S. Army Corps of Engineers is refusing an industry bid to win reviews of permits issued prior to the Supreme Court's controversial Rapanos ruling, despite administrative and legal precedents developers have cited in urging the Corps and EPA to revise a landmark wetlands guidance to let industry seek reviews of the agencies' decisions. [Full article in PDF]

WETLANDS: Senate committee discusses court decisions' impact on Clean Water Act

By Katherine Boyle – Environment & Energy Daily – December 14, 2007 The Senate Environment and Public Works Committee yesterday discussed the effect of recent Supreme Court decisions on wetland protections in the Clean Water Act. Committee Chair Sen. Barbara Boxer (D-Calif.) described the hearing as "the opening round" in a series of discussions on Solid Waste Agency of Northern Cook Country (SWANCC) and Rapanos-Carabell and their effect on the phrase "waters of the United States" in the Clean Water Act.. In Rapanos-Carabell, the Supreme Court held that government wetland regulation should be limited primarily to navigable waterways and adjacent wetlands and should not extend to man-made ditches and other seasonally or intermittently wet areas. At issue is whether the court decisions preserved the wetland protections in the 1972 Clean Water Act, which uses the phrase "navigable waters of the United States," or whittled them down beyond what Congress had intended. For more information on this, visit: http://epw.senate.gov/public/index.cfm?FuseAction=Hearings.Hearing&Hearing_id= b4c06ac4-802a-23ad-4d79-67d143be2df9

After Lobbying, Wetlands Rules Are Narrowed

By John Broder – New York Times – July 5, 2007 After a concerted lobbying effort by property developers, mine owners and farm groups, the Bush administration scaled back proposed guidelines for enforcing a key Supreme Court ruling governing protected wetlands and streams. The administration last fall prepared broad new rules for interpreting the decision, handed down by a divided Supreme Court in June 2006, that could have brought thousands of small streams and wetlands under the protection of the Clean Water Act of 1972. The draft guidelines, for example, would allow the government to protect marsh lands and temporary ponds that form during heavy rains if they could potentially affect water quality in a nearby navigable waterway. For full story, go to: http://www.nytimes.com:80/2007/07/06/washington/06wetlands.html?ex= 1184385600&en=f651fdc51964a427&ei=5070&emc=eta1

EPA, Corps of Engineers Working to Clarify Federal Wetland Role

By Karl Blankenship – Chesapeake Bay Journal – July 9, 2007 Some of the nation’s headwater streams and wetlands would lose federal protection under guidance issued by the EPA and Army Corps of Engineers in June, which sought to interpret a jumbled ruling by the U.S. Supreme Court last year. The guidance sent to the field staffs of the two agencies, which are the primary federal entities for wetland protection, does not explicitly remove any areas from protection but establishes new tests that must be met before they can assert federal authority over certain areas. “This interagency guidance will enable the agencies to make clear, consistent, and predictable jurisdictional determinations,” said John Paul Woodley, Jr., the assistant secretary of the Army who oversees the Corps of Engineers. For full article, go to: http://www.bayjournal.com:80/article.cfm?article=3125

Justices Divided on Protections Over Wetlands (New York Times) (PDF)

Divided Supreme Court Rules on Wetlands Law (NPR)

Supreme Court Affirms Wetlands Protections (ABC News)

Supreme Court Tackles Wetland Protection

Justices Rein In Clean Water Act (Washington Post)

Supreme Court Rules Against Excessive Regulation (National Association of Home Builders)

Briefs

Brief for the United States

Brief for Carabell

Brief for Rapanos

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Friends of the Court Briefs from States and State Organizations (on behalf of the United States)

ASWM/ASFPM/NEIWPCC Brief

State Attorney General's Brief

Association of State and Interstate Water Pollution Control Agencies Brief

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Friend of the Court Brief (on behalf of Carabell/Rapanos) which included Utah and Alaska

Alaska, Utah, Western Urban Water Coalition, Natl. Water Resources Assn., Assn. of Calif. Water Agencies, Central Arizona Water Conservation District, State Water Contractors, Metropolitan Water District of Southern California, Westlands Water District, San Diego County Water Authority and California Farm Bureau Federation: http://www.eswr.com/1105/rapanos/rapakutahetal.pdf.

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Additional Information on Carabell/Rapanos

Endangered Species and Wetlands Report has posted a comprehensive web page available to the public at http://www.eswr.com/1105/rapanos/. This includes all the relevant Supreme Court information, amicus briefs filed and more. ESWR is a newsletter covering endangered species and wetland issues that can be subscribed to at http://www.eswr.com/aaeswr.htm.

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Maps and Pictures of Carabell and Rapanos Sites

The Rapanos and Carabell cases both arose in Michigan. These cases have attracted national attention, but few pictures have been available of these sites.

The Rapanos case before the Supreme Court is a civil case where Mr. Rapanos, has been found guilty of filling and draining a total of 54 acres of wetlands at three different sites without state or federal permits, and challenged the jurisdiction of federal agencies over these wetlands. Michigan's Department of Environmental Quality coordinated with the U.S. Environmental Protection Agency in carrying out the original enforcement action under Michigan's state administered Section 404 Permit program. Wetlands impacted by Mr. Rapanos' activities included 15 acres of mostly forested wetland directly adjacent to the boatable Pine River (Pine River site) - a major tributary of the Tittabawassee River; and 17 acres of mixed wetland habitat adjacent to the Rose Drain, (Hines Road Site) about one mile from its confluence with the Tittabawassee River. In addition to the civil conviction, Mr. Rapanos was found guilty in a federal criminal trial of destroying at least 22 acres of wetlands at the headwaters of the Kawkawlin River (Salzburg Site). Rapanos previously appealed this case to the Supreme Court, but the court declined to review it.

Rapanos Sites: Pine River Site Hines Road Site Salzburg Road Site

The one picture that has been published in the media is one of John Rapanos standing in a field at the Salzburg road site (April 2004 Transverse City Record Eagle) over 15 years after it was drained and filled by Rapanos in the mid to late 1980's.

Carabell

The permit application to alter the Carabell property dates back to the mid-80's. In the Carabell case, the landowner applied for a permit to clear, drain, and fill almost 16 acres of forested wetland located approximately one mile from Lake St. Clair (and in close proximity to the "Riverside Bayview" property which was the subject of a previous Supreme Court ruling extending federal jurisdiction to wetlands adjacent to stream systems). This permit application was denied by the Corps of Engineers in part because the landscape of forested wetlands in close proximity to Lake St. Clair -- a part of the Great Lakes system lying between the U.S. and Canada and connecting Lake Huron and Lake Erie -- has been seriously degraded by historical development.

Carabell Site

For information on the Clean Water Act, go to: http://www.aswm.org/fwp/cwa/index.htm

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