Judge throws out Martin Marietta's wetlands lawsuit against Corps

Atlanta - A federal district judge in Augusta will allow the Corps of Engineers to reconsider its decision last year that put an impoundment at Martin Marietta's Appling Quarry near Grovetown outside the protection of the federal Clean Water Act. In an unusual move, the Corps had asked for the remand after four conservation groups documented the illegality of its decision in papers filed with the court.

The judge's ruling, issued last week, ends a lawsuit on a related issue that Martin Marietta filed against the Corps in September. The groups were concerned that if Martin Marietta had succeeded, thousands of wetlands and many miles of streams in Georgia that are upstream of impoundments might no longer be protected from polluted, even toxic discharges, or from being filled in.

"This is a good ruling for Georgia's water resources," said Chris DeScherer, Senior Attorney with the Southern Environmental Law Center. "This was a brazen attempt by Martin Marietta to undo the federal government's authority to protect wetlands and streams for public good." SELC had filed a motion on behalf of four conservation groups - Savannah Riverkeeper, Georgia Wildlife Federation, National Wildlife Federation and Natural Resources Defense Council - who sought to intervene in the case.

In 1996, Martin Marietta obtained a permit from the Corps to dam an unnamed tributary of the Savannah River to create a 20-acre impoundment to supply water for its quarry operations. Last year, the company began plans to fill in upstream wetlands and 850 feet of creek to expand its facility. The Corps determined that the wetlands and creek were covered by the Clean Water Act and that the company would need a permit. The company sued the Corps, saying the impoundment cut off the upstream waters which were now "isolated." The company based its suit on an erroneous interpretation of a 2001 wetlands ruling by the U.S. Supreme Court. The case, Solid Waste Agency of Northern Cook County v. Corps of Engineers, or SWANCC, is widely relied on by industry seeking to develop wetlands, despite the fact that an overwhelming majority of federal courts interpret the decision narrowly and uphold the federal law's protections for most wetlands and other waters.

The Corps had also determined that because the company had been dumping waste materials into the impoundment, it was no longer protected. The conservation groups, in a motion to intervene in the case, defended the Corps' position on the upstream waters while challenging its finding that the impoundment was not protected.

"The filling of this small area could have become an enormous problem because of the precedent it would have 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 Georgia Wildlife Federation, which represents more than 45,000 hunters, anglers and other conservation-minded Georgians. "If Martin Marietta had won its lawsuit, Georgia's hunters and anglers would have lost the opportunity to enjoy many of the state's wetlands and streams, and as a nation we could have lost unimaginable numbers of wetlands and wildlife across America."

"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."

"We're obviously happy that this latest attempt by industry to weaken the federal Clean Water Act proved unsuccessful," said Daniel Rosenberg, a lawyer with the Natural Resources Defense Council. "The ruling also gives the Corps the opportunity to get the whole thing right this time around - to protect the stream and the pond."

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 were 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.