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Two high court cases may shape Florida wetlands

Two cases that could have major implications for Florida's vanishing wetlands will be argued before the U.S. Supreme Court today.

Both out of Michigan, the cases focus on how much power regulators have to protect wetlands under the federal Clean Water Act.

A ruling limiting federal power could wipe out protection for millions of acres of wetlands across the country, including 300,000 acres of swamps and marshes in the Florida Panhandle. It could also undermine the government's ability to prevent pollution, experts say.

A decision that supports federal power, on the other hand, could extend protection to thousands of acres of Florida wetlands where federal officials have hesitated to step in.

The arguments will mark the first high-profile environmental cases confronting new Chief Justice John Roberts and Justice Samuel Alito.

No one can foresee how the new Supreme Court will rule on the two cases, said Stetson Law School professor Royal Gardner, who specializes in environmental law.

"There's just no way to tell," said Gardner, who helped draft one of the dozens of friend-of-the-court briefs that have been filed.

Thirty-four of the 50 states joined in one such brief, arguing in favor of a broad interpretation of federal power over wetlands. Among the signers: Florida Attorney General Charlie Crist, a candidate for the Republican nomination for governor.

"He just wants to make sure the wetlands are as protected as they can be," said Crist spokeswoman JoAnn Carrin.

Under the 1972 Clean Water Act, wetlands are supposed to be protected because they aid flood control, filter pollution, recharge drinking water supplies and provide habitat.

Developers who want to destroy wetlands must get permission from the U.S. Army Corps of Engineers. Getting a permit can be a costly, time-consuming process, but the corps rarely says no.

The corps approves more wetland permits in Florida than in any other state. Between 1999 and 2003, it approved more than 12,000 permits to wipe out wetlands and rejected only one.

Last year, after the St. Petersburg Times questioned corps officials about their oversight of wetland construction, the corps rejected six permits - the most in more than a decade.

A Times analysis of satellite imagery found that in the past 15 years Florida has lost 84,000 acres of wetlands to development, even though federal policy says there should be no net loss of wetlands.

Property rights advocates complain that the corps requires permits for destroying wetlands that were never intended to be covered. Federal jurisdiction extends only to navigable waterways and wetlands that are connected or adjacent to them.

In 2001, the Supreme Court ruled 5-4 in an Illinois case that the property rights advocates were right.

For years, the corps justified protecting isolated wetlands because migratory birds used them as they traveled from state to state. The high court said that was too big a stretch.

Would-be developers across the country quickly petitioned the corps to reclassify their wetlands as isolated. For instance, a Tampa engineer working for four different developers persuaded the corps to drop regulation of 14,000 acres in Hernando County that drain into a sinkhole.

The Bush administration then proposed cutting back on the corps' jurisdiction. More than 135,000 comments poured in, nearly all opposed. The proposal was dropped.

Among the comments was a letter from the Florida Department of Environmental Protection that predicted more than 300,000 acres of wetlands in the Panhandle would be at risk.

The 2001 decision set up today's hearing.

In the more contentious case, John Rapanos in 1988 filled some of his 175 acres to sell to a mall developer. The wetlands are 11 miles from the Kawkawlin River but connected through a man-made drain and a creek. The river flows into Lake Huron.

A consultant Rapanos hired warned him about wiping out the wetlands without a permit. But "Rapanos asked the consultant to destroy any paper evidence of wetlands on his property and then threatened to fire him and sue if he did not comply," a federal court later wrote.

Rapanos proceeded without a permit and was convicted of willfully violating the Clean Water Act. Property rights advocates portray him as a victim.

"Overzealous federal prosecutors have used every tool available to punish a 70-year-old Michigan grandfather for moving sand from one end of his property to another," said Reed Hopper of the Pacific Legal Foundation, which is representing Rapanos.

"This case is about the federal government overstepping its authority, not about whether our water will be clean."

The second case centers on 19 acres in Macomb County, Mich., where developers proposed destroying more than 15 acres of wetlands for condominiums. A ditch beside the property connects to a drain that flows into a creek feeding Lake St. Clair.

The Environmental Protection Agency and U.S. Fish and Wildlife Service opposed the project, and the corps denied the permit.

The developers contend the wetlands were too far from Lake St. Clair to be considered connected.

Siding with the developers in the two cases are the American Petroleum Institute, the National Association of Home Builders, the International Council of Shopping Centers, the U.S. Chamber of Commerce and a coalition of Western water agencies.

Supporting the government, besides environmental and outdoor groups, are four former EPA administrators - two Republicans and two Democrats. They argue the ability to protect the cleanliness of tributaries is "at the very heart of the nation's water pollution control programs."

One of the ex-administrators is Florida native Carol Browner, the EPA head during the Clinton administration. The others are William K. Reilly, Douglas Costle and Russell Train.

Protecting large waters but not their tributaries is "like saying that you cannot cut down a tree, but are free to poison its roots," said Jim Murphy, an attorney with the National Wildlife Federation.

If stripped of their legal shield, more than half of the 100-million acres of wetlands in the lower 48 states that haven't already been drained or filled could be lost, said Scott Yaich, conservation director for Ducks Unlimited.

Information from the Associated Press was used in this report.

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