One Step Forward, Two Steps Back - The Ripple Effect: The Fate of Freshwater in the Twenty-First Century - page 83

In 1995, in Midland, Michigan, developer John Rapanos illed ity-four acres of wet-
land with sand to build a mall. He had not filed a permit, but argued the land was not
technically a wetland, and that he didn't need a permit. he US Army Corps of Engin-
eers denied him a permit to build, and the EPA charged Rapanos with violating the
law by filling in the wetland. The Clean Water Act protects “navigable waterways,” and
Rapanos said his property was twenty miles from the nearest navigable waterway. In
enforcing the law against Rapanos, the EPA had interpreted the law broadly, to include
wetland areas connected by tributaries, as it had traditionally done. State officials, and
even Rapanos's own environmental consultant, agreed with the EPA. Rapanos was con-
victed of two felonies for violating the law and faced millions of dollars in fines.
But Rapanos appealed his case up to the Supreme Court. In June 2006, five of the
justices agreed to void the rulings against Rapanos. Four conservative justices argued
in favor of a restricted interpretation of “navigable waters,” while four liberal justices
argued in favor of the EPA's interpretation. Justice Anthony Kennedy did not fully join
either side and argued for a case-by-case evaluation. The result of the Rapanoscase was
general confusion as to what legally constitutes a wetland and how to enforce the law.
In 2007, the US Chamber of Commerce complained that because of the Rapanos
ruling, some sixteen thousand permits for projects around streams had been delayed
because developers were unsure of their rights.
On the other hand, EPA's chief enforcement officer, Assistant Administrator for
Water Granta Nakayama, wrote in an internal memo (leaked to Greenpeace) that the
Rapanosdecision “ignores longstanding ecosystem … protection,” was causing “juris-
dictional uncertainty,” and “a significant impact on enforcement.” Nakayama concluded
that the decision had “negatively affected approximately 500 enforcement cases” in nine
months. Not long after Nakayama's memo came to light, Representative Henry Wax-
man revealed that the EPA had dropped or delayed more than four hundred cases in-
volving illegal pollution from industrial discharges and the like. (John Rapanos nev-
er admitted to breaking the law. But by 2008 he had paid a $150,000 civil penalty and
agreed to spend another $750,000 to re-create the wetlands he had destroyed.)
Rancor over the Rapanos case continues to fester, not the least among EPA regu-
lators. “We are, in essence, shutting down our Clean Water programs in some states,”
Douglas Mundrick , an EPA lawyer in Atlanta, told the NewYorkTimes.“his is a huge
step backward. When companies figure out the cops can't operate, they start remember-
ing how much cheaper it is to just dump stuff in a nearby creek.”
Part of the problem was that EPA officials lacked meaningful enforcement tools or
were pressured not to use the ones they had. Peter Silva , assistant administrator for wa-
ter, defended the EPA's regulatory actions—known as administrative and judicial refer-
rals—saying they rose from 4,478 cases in 2004 to 5,875 in 2008. But a study of CWA