December 29, 2008 - John Rapanos - U.S. Supreme Court, Washington D.C.

John Rapanos agrees to pay for Clean Water Act violations

A Michigan businessman has agreed to pay a $150,000 civil penalty and complete a 100-acre wetlands mitigation project near Midland as final settlement of a 14-year-old property rights case that went to the U.S. Supreme Court.

John Rapanos has also agreed to leave undeveloped about another 135 acres as part of a proposed settlement of a civil lawsuit filed against him by the U.S. Environmental Protection Agency. The federal government filed the proposed consent order today in U.S. District Court in Detroit. The order is still subject to a 30-day public comment period and approval by Chief U.S. District Judge Bernard A. Friedman.

"The standard line when people sign a settlement is it should make everyone equally unhappy," said Southfield attorney Arthur H. Siegal, who represents Rapanos. "Probably that's the case here."

Lynn Buhl, EPA regional administrator, said in a statement the settlement will benefit the environment by preserving a substantial amount of wetlands.

"This longstanding case demonstrates that EPA continues to vigorously pursue violations of the Clean Water Act that adversely affect wetlands."

The case -- seen as an important test of federal limits on property rights -- involved allegations Rapanos violated the 1972 U.S. Clean Water Act by filling in about 54 acres of wetland in Bay County where he wanted to build a shopping center. The developer's lawyers argued the land involved mostly was not wetlands, and even if it was, it wasn't linked to a navigable waterway so that it would fall under federal jurisdiction.

In 2006, in a 5-4 ruling, the Supreme Court said there must be a substantial connection between wetlands and the waters they feed in order for the land to fall under the Clean Water Act. But the court did not define how close to a waterway wetlands must be to merit federal protection. The Supreme Court sent the Rapanos case back to the federal court in Detroit, leading to the proposed settlement.

The proposed settlement admits no fault or liability by side.

Siegal said Rapanos succeeded in changing federal law by showing that the federal government's reach did not extend as far as it wished, though the extent to which he changed the law is yet to be determined.

"One person, if they're willing to stand up, can have a profound effect on the rest of us," he said.

Rapanos was also indicted in 1993 and convicted in March 1995 of two felony counts related to discharging pollutants into U.S. waterways. He was sentenced to a fine and probation. The federal government appealed that sentence, seeking prison time. That appeal is still pending.

Original Story - Detroit News

EPA - Press Release