Issues and Cases

Feds reach too far in regulating "wetlands"

Rapanos v. United States

ContactM. Reed Hopper

Status: Victory in United States Supreme Court! The case was settled after the favorable decision. Case closed on Sept. 29, 2009.

John Rapanos, PLF clientOn October 11, 2005, the United States Supreme Court announced it would hear Mr. Rapanos’ case against federal regulators who for nearly two decades have sought to throw this 70-year-old grandfather of six into prison and demand payment of millions in fees and fines because he failed to get a federal permit before clearing his land.

Central to this case is the federal Clean Water Act, which prohibits landowners from discharging dredged or fill material into “navigable waters” without a federal permit. Congress adopted the law to protect the nation’s waterways and municipal water supplies from pollution. This authority is premised on Congress’ power under the Constitution to regulate interstate commerce on the country’s navigable waters. But a “navigable water”—according to the government—does not have to be navigable, or even potentially navigable, or even water. Anything “hydrologically connected” to navigable water qualifies for federal regulation.

In a 2001 Supreme Court case called SWANCC v. Army Corps of Engineers, the government argued that isolated ponds and puddles were transformed into “navigable waters,” and subjected to regulation, merely by the stopover of migratory birds. The Supreme Court agreed with PLF arguments and struck down the Corps’ “migratory bird” rule, holding that the government’s authority does not extend to isolated wetlands that are not adjacent to a traditional navigable waterway. The court characterized the Corps’ expansive approach as pushing “the very limit of the congressional authority.” Yet, regulators still ignore the SWANCC ruling, and federal courts are split over the meaning of the word “adjacent.” Presently there is no legal reason why a puddle in your backyard is not covered by this law—and that is why the Rapanos case is so critically important.

When Mr. Rapanos hired contractors to prepare his property for development, the Environmental Protection Agency ordered him to obtain costly permits before doing so. He refused, pointing out that the contested “wetlands” on the property are 20 miles away from the closest navigable water in Saginaw Bay. Yet that, insists government lawyers, is close enough to justify the EPA’s regulatory control over Mr. Rapanos’ property. Consequently, when Mr. Rapanos proceeded with his development plans, the EPA charged him with violating the Clean Water Act.

In early 2005, a judge condemned the government’s ruthless campaign against Mr. Rapanos as personal, and rejected the EPA’s demand that he do prison time, calling Rapanos “the kind of person the Constitution was passed to protect.” Supreme Court decided to address Mr. Rapanos’ civil case, where he is facing a whopping $10 million in fines and $3 million in mitigation fees.

Since 1988, Mr. Rapanos and his wife Judith have been trying to beat back the bureaucrats who clearly want to make an example of him. When government lawyers had brought criminal charges against Mr. Rapanos in 1994, seeking jail time, Chief District Judge Lawrence Zatkoff refused to send him to prison, finding the sentence too harsh—especially since the government was asking for more jail time for Mr. Rapanos than a drug dealer sentenced the same day. With clear outrage, Judge Zatkoff stated:

“So here we have a person who comes to the United States and 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’m not going to do it.”

Government attorneys, however, were determined to send Mr. Rapanos to prison, and successfully appealed Judge Zatkoff’s ruling. Mr. Rapanos took his case to the United States Supreme Court which overturned his conviction and ordered the Court of Appeals to reconsider the case in light of its earlier decision in the SWANCC case. On remand, federal officials changed course, claiming they had authority over Mr. Rapanos’ property because the disputed wetlands were “hydrologically connected” to navigable waters—even though the property is many miles away from any such waters. The trial court ruled in Rapanos’ favor, but on appeal, the Sixth Circuit adopted a very narrow reading of SWANCC, and reinstated his conviction.

Then, in December, 2003, PLF asked the Supreme Court to take up John Rapanos’ criminal case, but the court declined. Fortunately, in a separate case, the High Court invalidated the mandatory sentencing guidelines originally applicable to Mr. Rapanos’ criminal conviction. Mr. Rapanos’ criminal case returned to the lower courts and eventually made its way back to federal District Judge Zatkoff in March, 2005, who sentenced Mr. Rapanos to probation time served. The Department of Justice has since appealed the criminal case again because Judge Zatkoff refuses to impose prison time.

Meanwhile, EPA is determined to bankrupt Rapanos in this civil action in which the Supreme Court agreed to answer two questions presented by PLF and having enormous implications (1) Does the Clean Water Act reach wetlands that are neither navigable waters nor immediately adjacent to navigable waters; and (2) if so, does the Clean Water Act exceed Congress’ authority under the United States Constitution.

On June 19, 2006, the Supreme Court decided the Rapanos case. Five justices agreed with Rapanos that the federal agency had exceeded its authority. The High Court overruled the Sixth Circuit decision. However, the justices could not agree on the proper legal standard to apply to determine federal jurisdictions, therefore, the court has remanded the case back to the lower courts for further proceedings.


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