by R.J.
Smith
July 03, 2006
The June 19 5-to-4 Supreme Court decision in the double cases
of Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers was
another slow step in the long overdue reform of the application of the Clean
Water Act’s Section 404 and the rediscovery of the 5th Amendment. The
court agreed in principle that the U.S. Environmental Protection Agency and
the Army Corps of Engineers had vastly overreached in their interpretation
and application of the CWA.
Unfortunately, the ruling was not as clear cut as it might have been because
of the wavering of Justice Anthony Kennedy. But, nonetheless, it should lead
to improvements in the administration of the law.
Section 404 of the CWA gave the government authority to protect the
“navigable waters” of the United States, by having the sole authority to
grant permits to allow the discharge of dredged or fill material into
navigable waters. This was then extended to the tributaries of navigable
waters and eventually even to completely isolated intrastate non-navigable
waters. The latter included isolated small ponds or prairie “potholes”
on farm and ranchland in the Great Plains which might support a pair of
nesting ducks, vernal pools on a rancher’s land in California’s Central
Valley which might fill with water for a few months after winter rains, a
man-made stock-watering pond or a borrow pit or a quarry, or even a low area
in a field that had been farmed for corn for a century, but which, following
heavy rains, might hold water for a few weeks -- totally isolated, sometimes
by scores of miles, from any stream, let alone a navigable stream.
Bureaucratic Nightmares
The Wall Street Journal’s Max Boot has referred to this CWA-EPA-Army Corps
axis as “The Wetlands Gestapo” for very good reason. In every state of
the union, small landowners have faced bureaucratic nightmares when some
federal or state agent suddenly showed up and said their property contained
protected wetlands -- whether wet or dry. And typically these landowners
have entered no-exit mazes of bureaucratic red tape running on for years and
years, and even decades, of extremely costly permit-seeking and legal
proceedings, vainly seeking to exhaust all available “administrative
remedies” so that their cases might become ripe for seeking takings
compensation. Meanwhile, they were paying taxes on land they could not use.
The best example of the naked power behind the CWA surfaced in Maine, where
Gaston Roberge owned a 2.8-acre commercial lot which he had allowed the town
to use to dump fill. When he tried to sell it for his retirement the Corps
charged him with having an illegally filled wetland. In the subsequent legal
discovery process, an internal Corps memo was located recommending
“Roberge would be a good one to squash and set an example” in order to
create a climate of fear among landowners and developers.
While most victims suffer “only” substantial monetary losses and the
loss of the use of their land, others have fared far worse. James Wilson, a
Maryland developer, created some wildlife ponds on his land and was found
guilty of violating the CWA and sentenced to 21 months in federal prison and
fined $4 million. In Florida, Ocie Mills and his son each spent 21 months in
prison for filling a dry ditch with clean building sand in order to
construct the son’s personal home.
Perhaps the most notorious case was that of John Pozsgai who had escaped
Communist Hungary in 1956 to live in the land of the free. He purchased
property in Pennsylvania for a home and to build a truck repair shop. He
cleaned up part of the land and a storm-water drainage ditch, removing an
illegal dump containing more than 5,000 old tires. The tire-filled ditch had
flooded during heavy rains. Yet the Feds considered it a stream, declared
the dump removal a CWA violation, and Mr. Pozsgai was fined and imprisoned,
serving one and a half years in federal prison, another year and a half in a
“halfway house,” and then five years of supervised probation. The family
was forced into bankruptcy and his daughter is still vainly attempting to
gain Mr. Pozsgai a presidential pardon.
Mission Creep
This mission creep by the Corps and EPA was part of what was deemed the
Migratory Bird Rule, with the feds claiming jurisdiction over these
isolated, clearly non-navigable waters or wetlands because migratory birds,
crossing state lines, and supposedly involving interstate commerce, might
temporarily stop on one of these wetlands or farmers’ ponds to rest or
feed for a short time. This was also referred to as the Glancing Goose Test:
If a migrating goose glanced over its shoulder and spotted a small pond,
even if it didn’t stop, the mere glance extended the nexus of federal
control and regulations to that privately owned body of water. And there are
probably, at a bare minimum, some eight million such “wetlands,” almost
all on private lands -- probably far more under the most expansive
interpretation by the Corps. Supposedly, such isolated ponds are either
“navigable” or are still now “jurisdictional waters of the United
States.” Nice “land grab.”
It was such actions as these that Justice Scalia referred to as “expansive
interpretations” of the CWA.
It is expected that this decision will finally force the Corps and the EPA
back to the drawing board to undertake some very necessary new rule-making
and to decide what the meaning of “navigable” is and what precisely
makes a “tributary.” The Corps has announced that they will meet with
the Justice Department, but from what we’ve seen from Justice over the
past six years, there would appear to be little hope for any protection of
private-property rights or takings compensation.
This will be the second such opportunity to set things right and to remove
the 5th Amendment from the Bill of Rights orphanage. When the Bush
Administration took over, the Supreme Court had just decided another CWA
wetlands overreach case, the SWANCC decision, on Jan. 9, 2001. Solid Waste
Agency of Northern Cook County v. Army Corps of Engineers concerned plans
the county agency had to use an abandoned sand and gravel pit for a
municipal landfill. The pit was isolated, not connected to navigable waters,
and held some permanent water and some seasonal water. The Corps argued that
filling the pit was a violation of Section 404.
The Supreme Court decided 5-4 for SWANCC arguing that the federal government
had exceeded the intent of Congress. Chief Justice Rehnquest wrote: “[Y]et
we find nothing approaching a clear statement from Congress that it had
intended in S404(a) to reach an abandoned sand and gravel pit....”
Following SWANCC, the Corps had an opportunity to make things right. They
drafted a rule-making proposal and on Jan. 15, 2003, issued an advance
notice of proposed rule-making. They were clearly going to carefully examine
what “navigable” meant and whether this could be used to gain total
federal land-use control over any size wetland, no matter how ephemeral, on
any land in the nation.
Green Outcry
However, the Greens and state and local governments raised a huge cry, daily
reported in the media, that the Bush Administration planned to pave over the
U.S. How will we protect our vital wetlands they asked, if we can’t
prevent people from using their own property. For a start, they might save
them the old-fashioned and constitutional way -- pay for them. That’s what
Ducks Unlimited did once upon a time. Not only radical Green groups, but
former conservation organizations like Ducks Unlimited, predicted the demise
of the nation’s wetlands and waterfowl. Phoney sportsmen’s organizations
-- basically wealthy Green hunters -- led much of the attack on the expected
rule-making. Sadly, under all the Green outcry, the Bush Administration
backed off, fearful of a backlash -- from Greens who ever voted for Bush
anyway -- and the rule-making quietly disappeared. And the Feds continued to
nationalize wetlands and ponds across the country.
Hopefully, the court’s decision on June 19 will this time lead to a
successful re-examination of the issues and a rule-making that is consistent
with the Constitution. The Corps will again have a chance to determine what
a “tributary” is and more importantly to decide what “navigable”
means. Perhaps it is too much to expect in a time when Presidents debate
what the meaning of is is. But since the Corps has had long experience in
dealing with navigable waters, perhaps, they might yet decide that
“navigable” actually means “navigable.” Let’s hope they will
decide that it was the clear intent of Congress, when they acted to protect
“navigable waters,” that they actually meant “navigable waters” and
not a wet area in a landowner’s backyard.
Mr. Smith is senior fellow for Environmental Policy at
the National Center for Public Policy Research.
