FEDERALISM OR WETLANDS UBERALIS?

Thanks to Gregory T. Broderick, an attorney with the Pacific Legal Foundation (“PLF”), for calling to my attention that PLF has filed a petition with the US Supreme Court concerning a potentially landmark Clean Water Act (“CWA”) case (JOHN A. RAPANOS, et al., Petitioners v. UNITED STATES OF AMERICA, Respondent, PETITION FOR WRIT OF CERTIORARI filed January, 2005).

John and Judith Rapanos, PLF’s clients, are presently facing up to $10 million in fines, and Mr. Rapanos is facing time (potentially over 5 years) in the Federal pokey, for grading “wetlands” on their 200-acre Michigan property without first securing a permit to do so.  The government actions against the Rapanos’ are based on the proposition that the wetlands at issue affect the “navigable waters of the United States” and, thus, affect interstate commerce.  As the PLF's Petition on behalf of the Rapanos’ summarizes the pertinent CWA provisions at issue in the case:

The CWA provides that “the discharge of any pollutant by any person shall be unlawful,” unless approved by the federal government. 33 U.S.C. § 1311(a) (CWA § 301(a)). The Act provides further that: “The Secretary may issue permits . . . for  the discharge of dredged or fill materials into the navigable waters at specified disposal sites.” 33 U.S.C. § 1344(a) (CWA § 404(a)). The term “navigable waters” is defined simply as “waters of the United States.” 33 U.S.C. § 1362(7) (CWA § 502(7)). It was under these statutory provisions that the Rapanos were cited for filling wetlands without a permit.

While of course the federal government and the Raponos’ differ concerning the legalities at issue, it appears there is no dispute that the wetlands at issue are fairly remote, in a physical sense, from navigable US waters.  Again quoting from the PLF Petition filed with the Supreme Court on behalf of the Rapanos’:

... in the case of the Salzburg site [one of 3 sites at issue owned by the Rapanos'], the nearest navigable water is more than 20 miles away. ... Any surface water connection is intermittent and connected to a navigable waterway only by means of a manmade ditch, a nonnavigable creek and a river that ultimately flows into the Saginaw Bay. ... Likewise, the wetlands on the Hines Road and Pine River sites are connected to navigable waters only through surface runoff that purportedly flows into nonnavigable tributaries to distant navigable waters.

The United States, however, takes the position that these wetlands do affect navigable US waters because the wetlands, while physically remote from such waters, nonetheless have a hydrological connection to the waters.

While one appellate Court (the US Fifth Circuit) has voiced agreement with the Rapanos’ construction of the CWA, other appellate Courts (the Fourth, Sixth, Seventh and Ninth Circuits) have sided with the government’s view of the statute. The Rapanos’ are asking the Supreme Court to resolve this disagreement among the Circuits.

This resolution of this seemingly abstract conflict over statutory construction has taken on real-world significance because the Rapanos’ (and others) are facing or have faced ruinous penalties and/or prison sentences for failing to request a CWA permit before taking action affecting wetlands.  The debate has become pointed and emotional, undoubtedly in part because this particular debate serves as a surrogate for the broader question of how far the federal government should be allowed to intrude into otherwise local land-use decisions.  Thus, one influential pro-Rapanos’ editorial argues:

Over the past 20 years or so, we've written about other American citizens who've gone to jail for running afoul of wetland regulators. These include John Pozsgai of Pennsylvania, whose crime spree consisted of improving a lot he bought that was filled with 7,000 old tires. Bill Ellen was another hardened wetlands criminal, a maritime engineer who actually ran afoul of the wetlands federalistas while trying to create a wildlife sanctuary in Maryland.

Now it's Mr. Rapanos's turn. At his original sentencing hearing in 1998, ... Judge Zatkoff [the trial Judge] highlighted the absurdity of the situation when he pointed to a drug dealer he'd sentenced that day in the same courtroom. "Here we have a person," Judge Zatkoff said, "who commits crimes of selling dope and the government asks me to put him in prison for 10 months. And then we have an American citizen, who buys land, pays for it with his own money, and he moves some sand from one end to the other and [the] government wants me to give him 63 months in prison. Now, if that isn't our system gone crazy, I don't know what is. And I am not going to do it. I don't believe he got a fair trial."

"Wetlands Desparado", Wall Street Journal Editorial, August 29, 2004.

The Supreme Court has not yet announced whether it will accept the Rapanos’ Petition for review.  If review is accepted, the Court’s ruling should provide landmark guidance as to the extent to which the feds can police seemingly "local" land-use decisions.  More on this as more becomes available.

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