Clean Water Act’s Ever-Expanding Reach

Michigan landowner takes government's water grab to Supreme Court

A big mess! That’s the only way to describe the state of wetland regulation in this country under the Clean Water Act.

The Supreme Court waded into this mess two weeks ago when it agreed to hear the appeal in the civil case against Michigan developer, John Rapanos.

On the court’s decision will now depend whether homes and businesses, that either have or are near any pond or puddle, will be subjected to criminal charges and ruinous civil penalties for making ordinary use of their property without a government permit.

Rapanos has been fighting wetland bureaucrats since 1985 when he began clearing brush and moving dirt on property he had owned for decades to prepare it for a shopping center. However, the Michigan Department of Natural Resources (DNR) – the state enforcement arm of the Environmental Protection Agency – issued Rapanos a cease-and-desist notice and ordered him to obtain a wetland permit.

Rapanos ignored DNR’s edict on grounds that apart from two little wet spots that he was not planning to touch, his property was arid, thanks to its sandy soil and the drainage ditches around it that the county built in 1904.

Yet, federal prosecutors, resorting to some pretty tawdry legal tactics, persuaded a jury to convict Rapanos of criminal charges, forcing him to pay hundreds of thousands in fines, serve 200 hours of community service and three years of probation.

However, not satisfied with their pound of flesh, prosecutors are still trying to hit Rapanos for $15 million in penalties and 80 acres of land in a civil suit.

But Rapanos, who is being represented by Pacific Legal Foundation before the Supreme Court, is arguing that the federal government had no authority to regulate his property in the first place, given that the Constitution’s Commerce Clause limits the Clean Water Act’s jurisdiction to navigable waters. (The Supreme Court in 2003 had declined to review his criminal conviction.)

The federal government, however, is arguing that it has the right to regulate any property with a “hydrological connection” to navigable waters.

Given that all waters, in the end, are part of one, big hydrological cycle, what the government is really asserting is that it has authority over all waters in the United States.

It is hardly possible that Congress would hand the federal government such breathtaking powers without making any explicit statement of its intention when it passed the original Clean Water Act in 1972. Or when it amended the act five years later. Or when it passed additional amendments in the 1987 Water Quality Act.

The fact is that many agencies responsible for enforcing the Clean Water Act did not themselves believe – until fairly recently – that they had such all-encompassing powers.

Take the case of the Army Corp of Engineers that regulates the discharge of dredge or fill material.

According to an amicus brief filed by the National Association of Home Builders in the Rapanos case, the Corps believed in the mid 1970s that its regulatory authority extended only to navigable waters. In 1975, the Corps asserted jurisdiction over navigable waters and their non-navigable tributaries up to their headwaters. Then it became navigable waters and waters adjacent to them.

But all along the Corps disavowed any intention of ever regulating any “manmade non tidal drainage and excavation ditches on dry land” that were not navigable.

Until Rapanos, that is. Now the government is using precisely such ditches to claim a hydrological link between his property and navigable waters 20 miles away to claim jurisdiction.

What all of this makes clear is that the federal government, for the last three decades, has been engaged in an incremental – but systematic – mission creep, testing at every step if either the Congress or courts would push back its ever-expanding reach.

The Supreme Court did briefly step in when it threw out the absurd migratory bird rule in the 2001 Solid Waste Agency of Northern Cook County (SWANCC) vs. U.S. Army Corps of Engineers. Using this rule, the government wanted to regulate even isolated wetlands simply because ducks and geese used them as resting places when crossing state lines.

But only the 5th Circuit Court has used the SWANCC ruling to bar federal jurisdiction over waters with only a distant “hydrological” connection to navigable waters. The 4th, 6th, 7th, and 9th Circuit Courts have interpreted the Supreme Court’s prohibition against regulating isolated waters much more narrowly with at least one circuit taking it to mean waters that are totally sealed. Under such a reading, if even one molecule can escape from a water body to navigable waters then the body is not totally sealed and becomes fair game for the feds.

In other words, the government’s migratory bird principle has morphed into the migratory molecule principle, notes Gregory T. Broderick, one of Rapanos’ legal counsels at Pacific Legal.

Setting aside the absurdity of such a reading, courts with such diametrically opposed interpretations of standing law only erode the sanctity of rule of law. “Whether property owners in identical circumstances are subject to the Clean Water Act or free from its severe penalties depends entirely on their geographical location,” explains Broderick.

Rapanos is facing ruin because he had the misfortune of being located in the wrong jurisdiction. It remains to be seen if the Supreme Court will bring him to the right side — or all other property owners to his side.

Shikha Dalmia is a senior policy analyst at Reason Foundation.