Quarry case jeopardizes wetlands, streams throughout Georgia, U.S.

Atlanta – The Corps of Engineers must maintain its jurisdiction over a wetland and stream in Columbia County that is targeted for development, or risk opening a major crack in the protection of U.S. waters afforded by the Clean Water Act, the Southern Environmental Law Center said today in papers filed in federal court.

The Corps is being sued by Martin Marietta Materials, Inc., which wants to fill in a wetland and stream to expand its operations at Appling Quarry, near Grovetown. The Corps told the company it needs a permit since these waters fall under the purview of the Act. SELC today filed a motion to intervene in the case to defend the Corps’ position. SELC is representing Savannah Riverkeeper, Georgia Wildlife Federation, National Wildlife Federation and Natural Resources Defense Council.

“What happens to this wetland and stream holds enormous consequences for Georgia, and the U.S.,” said SELC Senior Attorney Chris DeScherer. “If Martin Marietta wins its lawsuit, thousands of wetlands and miles of streams would be at risk in one fell swoop.”

Martin Marietta obtained a permit from the Corps in 1996 to dam an unnamed tributary of the Savannah River to create a water supply pond for its quarry. The company subsequently began discharging wastewater to the 20-acre pond. Last year, the company wanted to fill in the wetland and creek upstream of the pond to expand its quarry operations. The Corps told the company it needed a permit from the agency because the waters were protected under the Clean Water Act. Instead of seeking a permit, however, the company sued the Corps, saying the pond cut off the upstream waters from flowing into the Savannah River. The company, based on its interpretation of a 2001 wetlands ruling by the U.S. Supreme Court, argues the waters are now “isolated” and outside the jurisdiction of the Act.

In the case Solid Waste Agency of Northern Cook County v. Corps of Engineers (SWANCC), the Supreme Court found that the Corps could not rely on the presence of migratory birds as the sole reason to assert jurisdiction over the small ponds in Illinois that the birds use, and which are not connected to navigable waters. (Generally, the federal government has jurisdiction over migratory birds under interstate commerce law.) Since then, developers have repeatedly tried to apply the decision over broadly to waters that have clear connections to navigable waters, as in this case. However, the overwhelming majority of federal courts continue to interpret the decision narrowly and uphold the federal law’s protections for most wetlands and other waters.

“It is preposterous for industry to twist the Supreme Court decision to say that if a dam is built, it’s open season for pollution on all upstream waters,” said Jim Murphy, National Wildlife Federation Water and Wetlands Resources Counsel. “Waters impounded by and upstream from dams are critical to wildlife and people who enjoy wildlife. The law offers these waters clear protection.”

The conservation groups are concerned that if Martin Marietta succeeds, thousands of wetlands and many miles of streams in Georgia that are upstream of impoundments would no longer be protected from polluted, even toxic discharges, or from being filled in. According to a 2002 report by the University of Georgia’s River Basin Science and Policy Center, Georgia has the highest density of dams in the Southeast. The center estimated there are 68,000 impoundments in the state, based on 1993 inventories by the U.S. Department of Agriculture Soil and Conservation Service. The groups are also concerned that a ruling for the company would be exploited by land developers and other industries beyond Georgia and threaten water quality throughout the U.S.

Savannah Riverkeeper: “The water quality in the Savannah River is a composite of the water quality in its tributaries,” said Executive Director Frank Carl. “For many years after the passage of the Clean Water Act in 1972, the water quality in the river improved, but in the last 10 years that trend has reversed, both because an increased population has increased the pollution load and because the agencies charged with protecting the water quality are continually challenged by selfish interests.”

Georgia Wildlife Federation: “The filling of this small area becomes an enormous problem because of the precedent it could set for fundamental change in the interpretation of the Clean Water Act with regard to our nation’s wetlands,” said Jerry McCollum, CEO of the organization, which represents more than 45,000 hunters, anglers and other conservation-minded Georgians. “This would be a significant loss of wetlands to the hunters and anglers of Georgia, but it would lead to a huge loss of wetlands and wildlife across America.”

Natural Resources Defense Council: “The Clean Water Act provides an opportunity for the public to be informed and comment on proposals to discharge pollution into our lakes, streams, rivers and other waters,” said senior attorney Daniel Rosenberg. “If streams, wetlands and other waters above dams are no longer part of the Clean Water Act’s jurisdiction, the public will lose its right to determine what pollution will flow downstream and what aquatic habitat will be destroyed.”

If SELC’s motion to intervene is successful, the conservation groups will be able to participate fully in the litigation, including present testimony and witnesses, and providing their arguments to the court about why the Columbia County stream and wetland are within the jurisdiction of the Clean Water Act.