|
ANOTHER TROUBLING DECISION IN THE WAKE OF
RAPANOS
In
a troubling decision, a Connecticut
judge ruled that wetlands neighboring the navigable Farmington River
were not jurisdictional under the Clean Water Act because the wetlands
lacked a continuous surface hydrological connection to the river and
other possible connections to the river were too speculative to
support jurisdiction. The case involved a Clean Water Act
citizens' suit against a local gun club that alleged the club was
discharging lead (in the form of fired munitions) into wetlands and a
vernal pond bordering the Farmington
River.
In
its decision, the court did look to Justice Kennedy's concurring
opinion, as well as Justice Scalia's plurality opinion, in Rapanos.
Following the logic of the recent First Circuit Federal Court of Appeals opinion in United
States v. Johnson, the court decided that it "will consider
under both the plurality's and Justice Kennedy's standards the issue
of whether the plaintiffs have demonstrated a genuine factual dispute
about whether Metacon munitions are being discharged into the waters
of the United States."
In
applying the plurality test, the court did not find a continuous
surface water connection. The court also applied Justice
Kennedy's test to the wetlands. It acknowledged that "[i]t is
undisputed that wetlands border the Metacon range to the north and
lie behind the berm, and that the Farmington River
borders the site to the west." The area was previously subject
to state wetlands regulation and conducive to flooding conditions
that can lead to surface water connections with the river. Yet,
the court found evidence of actual lead contamination from the
wetlands at issue to other waters inconclusive, and appeared to
ultimately pin its determination of significant nexus on this
data. In a footnote, the court acknowledged that it was
"aware that '[t]he CWA does not require any showing that a
pollutant has caused environmental damage to enforce the NPDES
permitting requirement." However, for the
purposes of determining whether the water was in fact jurisdictional
under Justice Kennedy's "significant nexus" test, the court
seemed to place great weight on such a showing.
(Excerpts from Jim
Murphy, Wetlands and Water Resources Counsel, National Wildlife Federation)
And
again, just one more ruling signifying the need for Congress to
reaffirm the intent of the Clean Water Act - that is to protect all
of our wetlands, streams, lakes, rivers, and other important
waterways.
PRESIDENT’S 2008 BUDGET
The
White House budget released Monday does not go far enough to restore
the Great Lakes. The President’s proposed budget
cuts funding for Great Lakes programs by about 10 percent from 2006
allocations. The President’s
budget funds construction of an electric barrier to prevent the Asian
carp from entering the Great Lakes
and it also recommends a slight increase for the Great Lakes Legacy
Act, which funds the clean-up of toxic sediments in the region’s bays
and harbors. However, the budget slashes funding to programs that
help upgrade municipal wastewater treatment systems to prevent sewage
contamination, control invasive species such as the sea lamprey, and
restore fish habitat.
This
budget does not keep pace with the comprehensive restoration plan
developed by the region’s citizens, mayors, governors, and the
President’s own task force. It will be up to Congress to act to
restore a resource that millions of people depend on for their jobs,
drinking water, and quality of life.
MWAC MEMBER LIST UPDATES
We
are currently in the process of updating the Michigan Wetland Action
Coalition directory. If you have not done so already, please reply to
this email with the requested information below or email
jenniferm@watershedcouncil.org in order to ensure that we have your
most up-to-date and accurate information.
Again, please feel free to pass this on
to anyone who you think may be interested in receiving the bi-weekly
MWAC E-newsletter. Your assistance is very
much appreciated!
Name:
Affiliation:
E-mail:
Address:
Phone:
Fax:
Any additional information you may have:
|
