Opposing The Unwarranted Extension Of The Army Corps of Engineers’ Jurisdiction Over Inland Wetlands
NELF’s participation as an amicus curiae in this appeal to the United States Court of Appeals for the First Circuit follows naturally from NELF’s representation of the defendant in this civil case, Charles Johnson, as an amicus curiae in connection with the petition for certiorari to the United States Supreme court in Rapanos v. United States.
Mr. Johnson, members of his family and the family business were sued in 1999 by the Environmental Protection Agency (“EPA”) (which enforces Army Corps of Engineers regulatory authority over wetlands) in the United States District Court for the District of Massachusetts. The EPA based its complaint on alleged filling activity in wetlands associated with the creation and maintenance of cranberry bogs located in Carver, Massachusetts that are used in the family business. Mr. Johnson is a 73 year-old cranberry farmer who purchased his first cranberry bog in 1958 and currently farms, with his son, approximately 140 acres of cranberry bogs. Using standard techniques in the industry, Mr. Johnson has created substantial new wetland acreage out of former uplands since the 1950s. The activities about which the EPA complains occurred largely in the early 1980s and include Mr. Johnson’s impoundment of a stream to create an artificial pond to control water levels in the bogs. The EPA alleges that these activities occurred in areas that were “formerly marshy.” Although the Johnsons’ property is not adjacent to navigable waters, the District Court granted partial summary judgment against the defendants on liability based on the EPA’s arguments for the “Hydrological Connection Rule” which is described in the Rapanos summary, and granted summary judgment on remedy, requiring the Johnsons to pay a $75,000 civil penalty.
In its amicus brief, which was filed on June 30, 2005, NELF urged the First Circuit to adopt the Fifth Circuit’s interpretation of the Clean Water Act, which limits Army Corps’ regulatory authority to wetlands actually adjacent to national navigable waterways. The First Circuit issued a sharply divided decision on February 13, 2006, affirming the lower court’s judgment against the Johnsons. The First Circuit has stayed en banc review until after the Supreme Court has issued its decision in Rapanos.
NELF’s participation as an amicus curiae in this appeal to the United States Court of Appeals for the First Circuit follows naturally from NELF’s representation of the defendant in this civil case, Charles Johnson, as an amicus curiae in connection with the petition for certiorari to the United States Supreme court in Rapanos v. United States.
Mr. Johnson, members of his family and the family business were sued in 1999 by the Environmental Protection Agency (“EPA”) (which enforces Army Corps of Engineers regulatory authority over wetlands) in the United States District Court for the District of Massachusetts. The EPA based its complaint on alleged filling activity in wetlands associated with the creation and maintenance of cranberry bogs located in Carver, Massachusetts that are used in the family business. Mr. Johnson is a 73 year-old cranberry farmer who purchased his first cranberry bog in 1958 and currently farms, with his son, approximately 140 acres of cranberry bogs. Using standard techniques in the industry, Mr. Johnson has created substantial new wetland acreage out of former uplands since the 1950s. The activities about which the EPA complains occurred largely in the early 1980s and include Mr. Johnson’s impoundment of a stream to create an artificial pond to control water levels in the bogs. The EPA alleges that these activities occurred in areas that were “formerly marshy.” Although the Johnsons’ property is not adjacent to navigable waters, the District Court granted partial summary judgment against the defendants on liability based on the EPA’s arguments for the “Hydrological Connection Rule” which is described in the Rapanos summary, and granted summary judgment on remedy, requiring the Johnsons to pay a $75,000 civil penalty.
In its amicus brief, which was filed on June 30, 2005, NELF urged the First Circuit to adopt the Fifth Circuit’s interpretation of the Clean Water Act, which limits Army Corps’ regulatory authority to wetlands actually adjacent to national navigable waterways. The First Circuit issued a sharply divided decision on February 13, 2006, affirming the lower court’s judgment against the Johnsons. The First Circuit has stayed en banc review until after the Supreme Court has issued its decision in Rapanos.
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