The Case of construction on a wetland

The facts are not greatly in dispute. John and Judith Rapanos own three parcels of land in Bay, Midland and Saginaw counties in central Michigan. In 1988 he began to explore the possibility of developing a shopping center and other facilities. One problem was evident from the outset. A third of the land was arguably "wetland," subject to state and federal jurisdiction under the Clean Water Act of 1972. Under the law, such private development requires a public permit.

Convinced that the act did not apply to his property. Rapanos plunged ahead anyhow. When his hired consultant filed a report that failed to please him, he fired the consultant. He was stubborn, argumentative, opinionated, and difficult. He began to fill the disputed acres. The Corps of Engineers, unaccustomed to such an affront to its majesty, took him to court and finally won a jail sentence and a whopping fine.

With help from the Pacific Legal Foundation and supporting briefs from other conservative supporters, Rapanos got a break on Oct. 11. At some point this winter, the Supreme Court will hear his argument that the Clean Water Act, as interpreted by the 6th Circuit in this case, goes beyond the powers delegated to the federal government.

It is a highly persuasive argument — indeed, a strongly convincing argument. You may search the Constitution from "We the People" to the last syllable of the most recent amendment, and you will find not a single phrase delegating power to the federal government to control the "navigable waters" of the United States. The assumed power is shakily inferred from the power vested in Congress "to regulate commerce among the several states."

The power has been usurped so successfully, over so many generations, that it now defies virtually every challenge. It will not be easily abridged. In his appeal, Rapanos will rely chiefly upon the Supreme Court's opinion four years ago in the Cook County case from Illinois. There the court held that Congress had no authority under the Migratory Bird Act to control some isolated seasonal potholes in Illinois.

The same reasoning applies by analogy to the case at hand. One of the tracts in the Rapanos case is 20 miles from the nearest truly navigable water. There simply is no plausible constitutional nexus between the subject wetlands and faraway Saginaw Bay.

Ah, but says the Corps of Engineers, there may be no navigable connection — not even a tributary creek — but there is a hydrological connection. Yes! There is a tenuous, sometimes seasonal, frequently underground, often invisible universal network of capillary waters that qualify under the Commerce Clause as "waters of the United States." And the Corps of Engineers holds dominion over all of them.

It is irrelevant, in the government's view, that you could not float a respectable rowboat on the tributary ditches of Saginaw County. But look! They're seasonally dry! To define them as part of the "waters of the United States" is to make a mockery of both law and lexicography.

In a friend-of-the-court brief, the Mountain States Legal Foundation spells out the predictable consequences of this folly: "If the federal government may regulate all waters with a hydrological connection to any navigable water, no matter how tenuous or remote the connection, there is virtually no land that the government may not regulate through its power under the Commerce Clause."

In a separate brief, the Washington Legal Foundation contends that in the Rapanos case, the 6th Circuit "has removed all meaning from the term 'navigable.'" The federal government lacks the constitutional power, in its view, to regulate every drop of water, coast to coast, that might eventually find its way to a navigable waterway.

"The glaring problem with this logic," says the Washington foundation, "is that it has no stopping point. Even if the property were 100 miles away, it could still be 'connected' (to Saginaw Bay) via drains, brooks, creeks, streams, or even groundwater, and therefore would still be subject to the claws of the federal government."

Call that hyperbole if you wish. And call John Rapanos a defiant, unreasonable, intractable scofflaw. A long time ago, that's what they called Patrick Henry.

(Letters to Mr. Kilpatrick should be sent by e-mail to kilpatjj@aol.com.)

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