Monday, January 16, 2006

Michigan DEQ Urges U.S. Supreme Court to Protect Michigan's Waters

The Michigan Department of Environmental Quality announced today its support for an amicus brief filed in the U.S. Supreme Court. DEQ Director Steven E. Chester requested the Michigan Attorney General to file the brief in support of the federal government position in a pair of cases initiated in Michigan. These two cases, John A. Rapanos v. United States of America, and June Carabell v. United States Army Corps of Engineers, both raise questions regarding the authority of the federal government to regulate the headwaters of traditionally navigable lakes and streams, along with the wetlands connected to those waters. The DEQ has urged recognition of the fact that protection of headwaters and tributaries to large lakes and streams is essential to the protection of the Great Lakes and other interstate waters.

The Rapanos case arose from the filling of three wetland tracts in Midland, Bay, and Saginaw Counties without either a state or federal permit. DEQ staff initially investigated these violations, and the EPA started legal action. Criminal action was brought in one of the three cases, and Rapanos was found guilty of violating the wetland protection provisions of the Clean Water Act in a jury trial in March 1995. The case on appeal involves the civil enforcement action brought by the EPA.

The Carabell case began after the DEQ denied a permit to fill over 12 acres of wetland in Macomb County. Although a state permit was issued following an administrative appeal, the federal government continued to assert that the proposed fill would violate federal standards, and refused to issue a permit.

The Supreme Court's decision could impact not only wetland permit programs, but also limits on the discharge of pollutants, eligibility for participation in federal grant programs, and other aspects of the Clean Water Act. While some have attempted to frame the case as an issue of the right of states to regulate internal waters, Michigan's Friend of the Court brief demonstrates that, should federal jurisdiction be limited by the court, the failure of one or more states to protect tributaries from pollution or destruction could have a devastating impact on Michigan waters, and adversely impact migratory waterfowl, fish, and other animals.

The amicus brief was filed jointly by the Michigan Attorney General, the Attorney General of the State of New York, and the International Association of Fish and Wildlife Agencies. At least 30 other state attorneys general have also signed this brief. A decision by the Supreme Court is anticipated during the summer of 2006.

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