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Regulation The Shifting Sands of the Clean Water Act by Gregory T. Broderick Don't mow
your lawn without calling a lawyer first — the Army Corps of Engineers might
come after you.
Developer John Rapanos should be a classic example of the
American Dream. Instead, he became the target of a government vendetta that
dragged him through a dozen years of litigation and pushed him to the brink of
bankruptcy. His story is a cautionary tale about how the Clean Water Act really
works.
| | Gregory T.
Broderick is a staff attorney at the Pacific Legal Foundation.
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Rapanos is the son of Greek immigrants who escaped war-torn, socialist Europe
to make a better life in Depression-era America. As a boy, John Rapanos played in
a hallway spattered with blood and bullet holes. Broke and struggling, the family
finally fled from their rough Chicago neighborhood to Midland, Mich., two hours
from Detroit. Though they arrived with nothing more than a carload of possessions
and their own wits, the Rapanos family prospered, despite anti-immigrant
sentiment. Rapanos' entrepreneurship began at an early age, when he set up
a candy stand outside the town's largest employer, Dow Chemical Company. The
business succeeded until one of Dow's employees attacked him for being a "dirty
Greek" and overturned his stand. Rather than slinking away, Rapanos sought out
the chief of police and demanded that the worker apologize. He did. As a
young man, John scraped together all the money he could find in order to buy some
real estate. After preparing the property for development, he sold it at a
profit, and Rapanos Investments was born. Since then, Rapanos has married, raised
six children, and made a fortune, all the while helping Midland grow from a
factory town to a "City of Science and Culture." His sons are also developers,
but they don't work for him; Rapanos has made them earn their own way.
Unfortunately, the story doesn't stop there. In the 1980s, Rapanos bought a
175-acre cornfield across from the old Dow plant and prepared it for development
by leveling the property. When his grading equipment hit the concrete foundation
of an old farmhouse that had been on the site, he took a natural sand pile and
spread it over the concrete. That incident 20 years ago is why John Rapanos now
faces jail time; that's why his family and companies face bankruptcy, and why the
property remains undeveloped. This startling story is just another chapter
in Clean Water Act (CWA) enforcement. Passed over President Nixon's veto in 1972,
the CWA prohibits the "discharge of any pollutant into navigable water" without a
federal permit. The language seems reasonable enough, but the statute has become
a charter for federal control over the most local of decisions: real estate
development, road building, driveway construction, even farming operations. The
law doesn't seem to apply to John Rapanos' land, which consists of cornrows and a
damp forest 20 miles from the nearest navigable waterway. But contorted
interpretations of terms like pollutant and navigable water have
made Rapanos' property as "navigable" as the mighty Mississippi.
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| Contorted interpretations
of terms like "pollutant" and "navigable" water have made Rapanos' cornfield as
"navigable" as the mighty Mississippi. |
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The pollutant Rapanos discharged wasn't oil, or nuclear waste, or chemical
sludge: just sand. But the Clean Water Act doesn't distinguish between
"pollutants," and it covers everything from solid waste to rock, sand, and even
heat. In one case, federal regulators required Oregon ranchers to plant trees to
block sunlight — which is a pollutant under the CWA. You might figure
that Rapanos' cornfield is not "a water." But, under the CWA, it's not necessary
for property to contain any water on its surface to qualify as "a water." A piece
of ground need merely meet the definition of "wetland" in the Army Corps of
Engineers' "1987 Wetlands Delineation Manual." Legally speaking, if the soil one
foot below your property is "saturated" with water for 5% of the growing season
— usually eight or ten days between spring and fall — you own "water,"
not land. By discharging a "pollutant" into "water," you've taken two
steps towards becoming a felon. The third step is whether the "water" is
"navigable." Here, the legal issue is more complicated. In the 1824 case
Gibbons v. Ogden, the Supreme Court held that Congress' power to regulate
interstate commerce extended to ferries providing transportation between New York
and New Jersey. In keeping with Gibbons' reasoning that the federal government's
power over navigation derives from the Constitution's commerce clause, federal
power over American waterways in the 19th century was limited to those used (or
capable of being used) as "highways for commerce, over which trade and travel are
or may be conducted." This continued until the 1890s, when Congress passed
a series of Rivers and Harbors Acts, making it unlawful to "cast, throw, empty,
or unlade" anything into a navigable waterway that might obstruct navigation.
Despite these small steps toward federal suzerainty, the government stayed
focused on commercial navigation throughout the late 19th and most of the 20th
century. But beginning in the 1960s, the focus shifted from protecting waters for
navigation's sake to protecting waters for their own sake. This change started
with public officials touting rivers as national scenic treasures, and soon took
off with an aggressive wave of legislation in the late 1960s and early 1970s. One
of these laws was the Clean Water Act. But even this new rush of laws
— aimed at pollution instead of navigation — was limited to "navigable
waters," which the law defined simply (if vaguely) as "waters of the United
States." In keeping with 150 years of law and tradition, the Army Corps of
Engineers, which enforces the CWA, initially applied it to the same waters that
the Rivers and Harbors Act covered: waters subject to the ebb and flow of the
tide, and waters that were being used or could be used for interstate or foreign
commerce. As late as 1974, federal regulations emphasized that federal
jurisdiction was determined by "the water body's capability of use by the public
for purposes of transportation or commerce."
| Anything left in a
wetland for one year could cost an offender almost $12 million — and
ignorance is not a defense. |
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It was only when environmental fanatics at the Natural Resources Defense
Council sued the government, complaining that this definition was too narrow,
that things really changed. Judge Aubrey Robinson, Jr., an unabashedly liberal
Johnson-appointee, sided with the NRDC and struck down the rules, finding that
the term navigable waters "is not limited to the traditional tests of
navigability" but requires "federal jurisdiction over the nation's waters to the
maximum extent permissible under the Commerce Clause." Rather than appeal
this ruling, the Army Corps of Engineers adopted new rules in 1975, asserting a
breathtaking federal authority over everything from "traditionally navigable
waters" and "tributaries of navigable waters" to "intrastate waters from which
fish were removed and sold in interstate commerce" and any other waters the Corps
"determines necessitate regulation" to protect water quality. Efforts to turn
back this regulation passed the House of Representatives, but died in the Senate,
and the modern age of federal regulation over virtually all water in the nation
began. In 1985, the Supreme Court removed what few limits were left when
it ruled in United States v. Riverside Bayview Homes that the CWA could
control wetlands "adjacent to" and "bound up with" any navigable river. With the
Supreme Court seeming to confirm the "anything goes" version of the law, the
Corps pushed its interpretation even further, adopting a new "clarifying" rule
extending jurisdiction over any "waters" that might be used by traveling
migratory birds, or that might provide habitats for endangered species. These new
rules even hinted that the CWA might extend federal control to irrigation ponds,
ditches, and swimming pools. Only in 2001 did the Supreme Court again wade
into these muddy waters to restore some limits, in Solid Waste Authority of
Northern Cook County v. Army Corps of Engineers. There, the Court struck down
the "Migratory Bird Rule," and definitively declared that the CWA does not
"extend to ponds that are not adjacent to open water." Anything else, the Court
said, would probably render the CWA unconstitutionally broad under the Commerce
Clause. The ruling was a relief, but in the four years since, federal courts have
sharply disagreed over its meaning. Today, the CWA means one thing in Michigan
and Maryland but another thing in Mississippi. The 5th Circuit Court of Appeals
had held that the CWA is limited to "navigable-in-fact" waters and immediately
adjacent ponds, but the 4th, 6th, and 9th Circuits are ready to allow the federal
government control over any body of water from which a single molecule of H2O
might end up in a navigable-in-fact water. If a water molecule can seep from your
backyard and eventually reach a navigable waterway, then mowing your lawn could
be a federal crime. Walking, biking, or driving a vehicle through a protected
wetland is considered a felony.
| In one case, federal
regulators required Oregon ranchers to plant trees to block sunlight — which
is a pollutant under the CWA. |
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have no way to tell which interpretation of the law will apply to them; they
must either cross the government and risk prosecution, or take federal
bureaucrats at their word and submit to what is probably an illegal application
of the CWA. Neither is particularly appealing. For a project like leveling a
cornfield, it takes a little over two years and costs more than $270,000 to get a
permit — assuming no delays. But proceeding without a permit can be even
more expensive: a criminal violation of the Clean Water Act brings with it a
maximum penalty of 15 years in jail and a $1 million fine; a civil violation
means a fine of $32,500 per day of violation, which the government counts as
every day that the "pollutant" remains in the "navigable water." Anything left in
a wetland for one year could cost an offender almost $12 million — and
ignorance is not a defense. So, when John Rapanos covered the troublesome
farmhouse foundation by moving sand from one end of his land to the other, state
and federal environmental officials accused him of filling dozens of acres of
wetlands with more than 300,000 yards of sand. Former Michigan environmental
chief Russ Harding says he's walked every inch of the property and drilled dozens
of holes at least five feet deep without finding any evidence that wetlands ever
existed there or that fill was brought in, and 300,000 yards of fill would
require thousands of truckloads of dirt, something the employees across the
street at Dow Chemical would probably have noticed. What's more, the evidence in
the government's criminal and civil charges against Rapanos, filed in two
separate cases, shows that the government doesn't even agree with itself about
where the wetlands are or what portions of the property were filled. None
of this mattered to the federal courts. After 13 years of criminal litigation and
12 years of civil litigation — which has included four appeals to the
Supreme Court and more than a half-dozen trips to the Sixth Circuit Court of
Appeals — John Rapanos was convicted of CWA violations and sentenced to
10–16 months in federal prison for polluting his so-called wetlands, which
connect to a 100-year-old man-made drain, which flows into a non-navigable creek,
which, finally, flows into the navigable Kawkawlin River, 20 miles away.
How did events ever get this far? In the opinion of at least one Sixth Circuit
judge who heard Rapanos' case, the government engaged in "prosecutorial
overkill," in which federal prosecutors compared him to "the devil" and compared
"his treeless property . . . to the Warsaw ghetto without Jews." According to
federal District Judge Lawrence Zatkoff, who presided over Rapanos' trial, the
government came after him because he is "easy to dislike, [and] had the audacity
and the temerity to insist upon his constitutional rights." Judge Zatkoff
found that "the average U.S. citizen is incredulous that it can be a crime for
which the government demands prison for a person to move dirt or sand from one
end of their property to the other end of their property and not impact the
public in any way whatsoever," and noted with irritation that prosecutors had
claimed Rapanos' act was worse than the Exxon Valdez oil spill. The judge
sentenced Rapanos to probation — but the government has asked the Supreme
Court to intervene and increase his sentence. As former Supreme Court
Justice Byron White put it,"[o]n a purely linguistic level, it may appear
unreasonable to classify 'lands,' wet or otherwise, as 'waters.'" It's even more
unreasonable to ruin John Rapanos. A less principled man would have backed off
long ago to close the deal, putting expediency ahead of property rights. But
Rapanos didn't build a successful life by giving in. The Supreme Court is now
considering whether to take his case. For John Rapanos, the case represents an
opportunity to win justice and avoid financial ruin and, as with the candy stand
from his youth, he won't stop until he's vindicated. For the rest of us, this
case is an opportunity to restore sanity to federal power, clarify the meaning of
the Clean Water Act, and end absurd federal meddling in local land use.
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