Back to the wetlands


One more challenge to the Clean Water Act has arrived at the Supreme Court on a petition for review. This one has a good chance of acceptance.

Only four months ago, on Jan. 9, the high court clipped the high-flying wings of the Army's Corps of Engineers. In a 5-4 decision, Chief Justice William Rehnquist ruled in a civil case from Cook County, Ill., that the corps' jurisdiction does not extend to isolated wetlands that are not adjacent to bodies of open water. In dissent, Justice John Paul Stevens called the ruling "a miserly construction of the statute." The interpretation made good sense to me.

The pending case of Rapanos v. United States is a criminal case. These are the facts:

John A. Rapanos is the owner of a 175-acre tract in Bay County, Mich., a few miles west of Bay City on Interstate 95. In an effort to develop the property for commercial use he set up a sawmill, cut some timber, removed the stumps, and brought in a "considerable quantity" of sand as fill. This activity drew the attention of Michigan's Department of Natural Resources. In 1989 the department inspected the site and concluded that it contained "rather extensive" wetlands. A federal permit would be required.

Rapanos emphatically disagreed. He proved a stubborn customer, certain in his own mind that the 29 acres that were finally at issue were not subject to federal jurisdiction. A federal grand jury indicted him anyhow, and in 1995 a jury found him guilty on two counts of unlawfully filling wetlands. District Judge Lawrence P. Zatkoff reluctantly imposed a fine of $185,000, put Rapanos on probation for three years and required him to perform 200 hours of community service.

Last December, the U.S. Court of Appeals for the 6th Circuit ruled that Judge Zatkoff had given the defendant too lenient a punishment and remanded the case for new sentencing. Then, in January, came the Supreme Court's opinion in the Cook County case. Now the whole wetlands issue is up for grabs again.

The defendant's argument all along has been that the "wetlands" on his property are not legally wetlands at all. The parcel contains no swamps, bogs or marshes. Any subsurface water flows "into the Lobodzinski Drain, then into the Hoopler Drain, and from there into the Kawkawlin River, ultimately reaching Saginaw Bay some 20 miles away." The tract has no surface connection whatever to any navigable waters of the United States.

That is the crux of the matter. Rapanos' case apparently will be controlled by the January opinion in Cook County. There the Supreme Court ruled that the Corps of Engineers had no jurisdiction over some isolated shallow ponds in an abandoned sand and gravel pit. The waters provided occasional habitat for migratory birds. No way, said the chief justice.

Getting back to Michigan: The government's case under the Commerce Clause was built mostly of cobwebs and moonbeams. A DNR witness said he had once seen a carp spawning in the Hoopler Drain. A fisherman testified that he harvests carp from Saginaw Bay for sale in New York. Even under the "aggregate" doctrine, by which one actual carp expands to a thousand imaginary carp, this is hardly evidence that the wetlands of John Rapanos could have a significant impact upon interstate commerce.

Judge Zatkoff found the right handle for the Rapanos case. At one point he noted for the record:

"I don't know if it's just a coincidence that I just sentenced Mr. Gonzales, a person selling dope on the streets of the United States. He is an illegal person here. He's a citizen of Cuba, not an American citizen. He has a prior criminal record ...

"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 am not going to do it."

The 6th Circuit chastised Judge Zatkoff for "inappropriate" remarks, but the judge was committing truth. The bureaucrats' greedy expansion of the Clean Water Act cannot plausibly be justified as a regulation of interstate commerce. Judge Zatkoff and the defendant Rapanos deserve to have the last word.