DETROIT, Michigan, December 30, 2008 (ENS) – In long-running case that affects the scope of federal jurisdiction over wetlands and other waters, developer John Rapanos and related defendants agreed Monday to resolve violations of the Clean Water Act at three sites in Midland and Bay counties, Michigan.

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, according to a joint statement by the Justice Department and U.S. Environmental Protection Agency.

While Rapanos did not admit doing anything wrong, he has 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 through 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 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,” she said.

In the late 1980s, Rapanos filled 54 acres of wetland that he owned with sand in preparation for the construction of a mall and residences without filing for a permit from the U.S. Army Corps of Engineers. He dug an extensive network of ditches to dry out the sites, which resulted in excavated dirt being sidecast into wetlands.

A Michigan wetland, not the Rapanos property (Photo by
Dawn Ulmer)

Rapanos argued that the land was not a wetland and that he was not breaking the law, but his own consultant and state employees disagreed.

The original enforcement action was filed against Rapanos in 1994. Rapanos was convicted of two felonies for filling wetlands in violation of law in 1995. The conviction was overturned and restored several times but, in the end, he was forced to serve three years of probation and pay $5,000 in fines.

Eventually, Rapanos appealed the civil case against him, which included millions of dollars of fines, to the Supreme Court of the United States.

Rapanos challenged the EPA’s findings that the filled wetlands were under federal jurisdiction under the Clean Water Act.

The case turned on the legality of the federal regulations that define waters of the United States. The focus was on regulation of wetlands adjacent to non-navigable tributaries of traditional navigable waters and regulation of wetlands separated from such tributaries by a berm.

Rapanos’ land is 20 miles from the nearest navigable waterway, a Lake Huron tributary river. However, the term “navigable waterway” has been broadly interpreted by the U.S. Environmental Protection Agency to include areas connected to or linked to waters via tributaries or other similar means.

The 2006 Supreme Court litigation determined that Rapanos did fill wetlands under federal jurisdiction. But the Supreme Court sent the case back to the federal district court in Detroit, saying regulators might have exceeded their authority in preventing Rapanos and another landowner from developing their properties.

That ruling eventually led to Monday’s settlement.

But the Supreme Court’s 5-4 decision left the law on federal jurisdiction over waters of the United States and adjacent wetlands unclear.

The plurality opinion, authored by Justice Antonin Scalia, joined by Justices Clarence Thomas, Samuel Alito and Chief Justice John Roberts, interpreted “waters” under the Clean Water Act to be limited to “only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ’streams … oceans, rivers [and] lakes.’”

This definition does not include channels through which water flows intermittently, or channels that periodically provide drainage for rainfall.

Regarding “adjacent” wetlands, the plurality argued that “only those wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between ‘waters’ and wetlands ‘adjacent to’ such waters, are covered by the Clean Water Act.”

Chief Justice Roberts, in a concurring opinion, suggested that lower courts and regulated entities would have to “feel their way on a case-by-case basis.”

Justice John Stevens wrote a dissenting opinion in the case, joined by Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer. The dissenting justices argued that the Supreme Court had previously upheld the regulation of wetlands adjacent to tributaries of navigable waters and that the court should defer to the agencies’ regulation of wetlands adjacent to non-navigable tributaries.

The Supreme Court’s deciding vote was cast by Justice Anthony Kennedy, who in a separate opinion steered a middle course between the opposing sides. Kennedy found that water draining from the Rapanos property does, in fact, flow into a stream and then into a navigable lake 20 miles away. But Kennedy said that just because water drains into a distant navigable lake is not in itself enough to trigger the wetlands protections under the Clean Water Act.

Exactly what would be sufficient remained unclear in his opinion.

Following the Supreme Court’s divided ruling in the Rapanos case, confusion has reigned among the agencies, the regulated community, and the courts over the definition of which waters are covered by the Clean Water Act.

Nevertheless, the consent decree to settle the Rapanos civil complaint was lodged Monday in the U.S. District Court in Detroit. It 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 website at www.usdoj.gov/enrd/Consent_Decrees.html.

There is a parallel criminal matter that is still pending and is not affected by the settlement under this agreement.

View This Story On Eco–mmunity Map.

SAN JUAN, Puerto Rico, August 11, 2008 (ENS) – The U.S. Environmental Protection Agency and the Puerto Rico Land Authority have reached a settlement that requires the creation of a task force to identify, monitor and protect wetlands in Puerto Rico in order to resolve a 2007 EPA complaint over Clean Water Act violations.

According to the settlement, the Puerto Rico Land Authority will pay a $25,000 penalty and set up a $100,000 interest-bearing account, which will be used to establish a wetlands management program.

“This far-reaching settlement will provide the necessary financial resources and political authority to create a Commonwealth-wide approach aimed at protecting thousands of acres of government owned wetlands and other environmentally-sensitive lands,” said EPA Regional Administrator Alan Steinberg from his office in New York.

The settlement resolves a September 2007 complaint issued by the EPA alleging the Puerto Rico Land Authority had violated the Clean Water Act by allowing wetlands to be filled without the appropriate permits.

According to the federal agency’s complaint, the Puerto Rico Land Authority allowed 1.8 acres of wetlands in the Canóvanas area of northeastern Puerto Rico to be developed for housing structures and dirt roads.

To satisfy the terms of the settlement, Puerto Rican Governor Aníbal Acevedo Vilá will establish a task force of Commonwealth government agencies that will identify, inventory, monitor and protect wetlands and other environmentally-sensitive lands owned by the Commonwealth.

This will be a supplemental environmental project, which is an environmentally beneficial project that an entity agrees to perform in settlement of an enforcement action.

The settlement also requires that Puerto Rico place a conservation easement on at least 1,000 acres of land it owns to protect it from industrial and high-impact agricultural development.

Additionally, the Puerto Rico Land Authority will create an environmental outreach campaign, adopt a wetlands protection plan for its property and install physical barriers at certain wetlands.

Wetlands filter chemical contaminants from water and land and help control floods. Wetlands also nurture and sustain a vast array of bird, plant, aquatic and animal life. Damaging or eliminating wetlands can be devastating to the coastal ecosystem.

The EPA reminds anyone planning construction activities in wetlands or streams to contact the U.S. Army Corps of Engineers well in advance to obtain a permit.

View This Story On Eco–mmunity Map.

MONTEREY, California, March 17, 2008 (ENS) – The Nature Conservancy and a deep-rooted Monterey County ranching family have protected Dorrance Ranch, 4,300 acres located on Mt. Toro’s northern ridge.

Working closely with the Dorrances, The Nature Conservancy purchased a conservation easement on the ranch to protect it from development, regardless of future ownership, and to ensure that the family’s legacy is preserved.

Rising up from what novelist John Steinbeck characterized as “the Pastures of Heaven,” Dorrance Ranch is a key part of Monterey’s ranching heritage and one of the county’s most familiar vistas.

“By employing sustainable ranching techniques over the years, and now ensuring that their property is protected for the long-term, The Dorrances have shown tremendous leadership,” said Christina Fischer, Monterey area project director for The Nature Conservancy. “This is a wonderful example of how conservation and ranching can work together to help both human and natural communities thrive.”

Part of the Dorrance Ranch in MontereyCounty (Photo courtesy California Wildlife Conservation Board)

The Dorrance family first settled the property in the 1940s and are considered pioneers for being early adopters of an approach to managing land resources in a way that builds biodiversity, improves grazing production and generates financial strength for the farmer or rancher.

The conservation easement, a legal agreement that runs with the land, builds on the Dorrances’ stewardship of the property. The family will continue to own and operate the ranch as it has for three generations.

“Ranching can be a tough business, but we couldn’t bear seeing our land sold and developed. It became clear that a conservation easement would keep the ranch in the family and preserve the landscape we’ve worked so hard to protect,” said Steve Dorrance, one of three brothers who own the property.

Steve’s son Drew, said, “This ranch is a part of me – partnering with organizations that share our same core values helps us preserve this beautiful land and will give me and future generations an opportunity to carry on the family legacy.”

The Nature Conservancy paid six million dollars for the conservation easement, nearly a million less than its appraised value. The funding was provided by the Wildlife Conservation Board, the David and Lucile Packard Foundation, The Big Sur Land Trust and private donations to the Nature Conservancy.

The difference between the appraised value and the purchase price represents a charitable gift by the landowners.

Dorrance Ranch and the surrounding lands are important to the health of the Monterey Bay Area, serving as the headwaters for streams in both Carmel and Salinas watersheds.

Its oak savannahs, ponds and grasslands provide habitat for native animals including the golden eagle, California red-legged frog, California tiger salamander, burrowing owl and California condor.

The ranch forms a natural barrier between new development and the area’s biologically-rich rangelands. It is also an important ecological stepping-stone within Monterey County’s network of protected lands – allowing plant and animal species to move and adapt to new threats such as climate change.

“The Monterey Bay is recognized by residents and visitors alike as a globally unique and exceptional natural resource – a jewel of the County. Few realize, however, that the health of the Bay is inextricably linked to the health of the lands that surround it,” said Robin Cox, acting director of science for The Nature Conservancy’s California chapter.

“In terms of watershed health, clean water, clean air and other ecosystem services,” said Cox, “individual decisions to protect private lands like the Dorrance Ranch benefit us all.”

View This Story On Eco–mmunity Map.

AUSTIN, Texas, February 26, 2008 (ENS) – The City of Austin has completed the purchase of more than 3,000 acres of land to protect wildlife habitat and water quality and eventually provide public access for a hike-and-bike trail from central Austin into Hays County.

“This is an exceptional model for future efforts – we really maximized the value of our investment and hit on multiple objectives at once,” said Austin Mayor Will Wynn.

The city has agreed to pay $30 million from voter-approved bonds to buy 1,500 acres outright and purchase a conservation easement on the other 1,558 acres.

“In dollar terms, this is the largest single land conservation deal in Texas history,” said Jeff Francell, director of land and water protection for The Nature Conservancy of Texas, which assisted the city in negotiations for the property.

“We used conservation easements to stretch public dollars, secured highly-sensitive land that was subject to intense development and created an amazing new opportunity to get people outdoors and active in a beautiful setting,” said Mayor Wynn.

The land, southwest of the city in Hays County, contains numerous caves, sinkholes, seeps and other wetlands that feed water into the Edwards Aquifer and Barton Springs.

It offers habitat for two endangered birds – the golden-cheeked warbler and the black-capped vireo.

Midway between the City of Austin and the City of San Antonio, Hays County has experienced rapid population growth overflowing from these two major metropolitan areas during the past decade.

The rural character of the county is being changed by new subdivisions, commercial property, and other types of urban development. Residential subdivision construction is fragmenting the large and contiguous patches of juniper-oak woodland habitat that shelters endangered wildlife.

Spring flowers in Hays County,
Texas (Photo courtesy
Hays County)

Situated strategically along a chain of other preserve lands, the newly purchased land will be part of the Walk-For-A-Day project. This partnership between the City of Austin and the Hill Country Conservancy would link easements, preserve lands and existing trails to create a continuous 35 mile trail extending south from the Barton Creek Greenbelt to Onion Creek in Hays County.

Mayor Wynn asked for the help of The Nature Conservancy of Texas because of the history of success the city has had in working with the group to execute complicated conservation agreements. He expressed satisfaction with the outcome.

“They were able to act with greater speed and agility than the city could have, securing exceptional environmental protections and helping leverage public dollars in a very judicious way. Frankly, they negotiated this deal at a phenomenal bargain price,” he said.

Thousands of homes were once planned for the site, but the conservation easement restricts development to no more than 15 homes and one community facility – and all must follow strict environmental protections that far exceed city regulations.

“The Hill Country Conservancy applauds the efforts of the City of Austin and the Nature Conservancy in acquiring this unique piece of property,” said Hill Country Conservancy President Steve Drenner.

“This property puts a critical piece of the puzzle in place for the southern portion of the Walk-For-A-Day trail system,” he said. “We are just thrilled with this news,”

The Austin City Council voted last year to authorize negotiation for purchase of the land. This purchase represents the 17th conservation easement by the City of Austin since 1998.

View This Story On Eco–mmunity Map.