Jump to Navigation
Jump to Content

United States v. Rapanos

ELR Citation: 34 ELR 20060
Nos. No. 03-1489, (6th Cir., 07/26/2004) Aff'd

The Sixth Circuit affirmed a lower court judgment against a developer for violating the CWA by discharging fill material into protected wetlands. The judgment was supported by the evidence and not clearly erroneous. The waters at issue in this case are interconnected with traditional navigable waters, and the record demonstrates that there were hydrological connections between all three sites and corresponding adjacent tributaries of navigable waters. Nor did the court err in allowing an expert witness to rely on supplemental records not disclosed to the developer until the trial was underway. No substantial prejudice was demonstrated. In fact, the only changes made between the original disclosed report and the supplemental report were beneficial to the developer. The developer also argued that the court erred by failing to make findings of fact under Michigan's wetlands regulations. Yet, there is nothing in the CWA to suggest that by allowing Michigan to enforce portions of the CWA, the U.S. Army Corps of Engineers was delegating the authority to the state to determine the limitations on CWA jurisdiction. The statute and the accompanying regulations make it clear that state enforcement programs cannot act to weaken the CWA.

[Prior decisions in this litigation are digested at 27 ELR 20961, 31 ELR 20357, and 33 ELR 20249.]