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MUDDIED WATERS IN MICHIGAN

[by James Kilpatrick] Seventeen years have passed since John Rapanos had his great idea: He would dump dirt and sand on 50 acres he owned in Michigan. On them he would build a shopping center and other structures. Three counties would benet from new taxes, thousands of people would have jobs, and everyone would live happily ever after.

That was 1988. This is now, and Rapanos is asking the Supreme Court to get him out of a jam he got himself into. Trouble is, the U.S. Army Corps of Engineers says those acres are wetlands, and nobody is going to build anything on a wetland without the engineers OK. Constant readers will recall that I have sided with John Rapanos before. In person, he may be a most agreeable companion. In this lawsuit he comes across as a mulish fellow, determined to have his own way, no matter what. He has managed to raise the hackles of every federal judge (but one), every army engineer and every government witness he has encountered since the case began. He can be a Very Difficult Man. But in this controversy, hes right-on. To shorten a long and unhappy story, state authorities advised him repeatedly in the 1980s that the several sites were federally protected wetlands. To develop them, he would need permits. Rapanos repeatedly ignored them. He hired a consultant to be his expert witness. When the consultant brought in a report saying the site was indeed a wetland, he fired the consultant. In April 1989, still without a permit from the army engineers, Rapanos began preparing the site for construction. He dumped sand over the wetland vegetation. At one site he set bulldozers to building roads. The Environmental Protection Agency sent him a compliance order. He ignored it. The state issued a cease-and-desist order. He neither ceased nor desisted. Eventually, the federal government ran out of patience and filed both civil and criminal

charges against him for violation of the Clean Water Act. The charges led to repeated trials and appeals. At one point, U.S. District Judge Lawrence Zatkoff said the government had gone crazy in its criminal prosecution. Proceedings led finally to a fine of $185,000 and a sentence of at least 10 months in a federal prison. John Rapanos is now 70 years old. The sentence is in abeyance. The separate civil action in U.S. District Court led to penalties and mitigation fees that add up to several million dollars. Last July a panel of the U.S. Court of Appeals for the 6th Circuit reluctantly affirmed the civil judgment. On Jan. 28, with the help of the Pacific Legal Foundation, Rapanos appealed to the U.S. Supreme Court. This is a case the high court should hear. U.S. District Judge Danny C. Reeves, sitting in the 6th Circuit by designation, began by emphasizing that the acts reach does not extend to all waters. There are jurisdictional limits, but these are far from obvious. In two leading cases, the Supreme Court has done little to clear the muddied waters of the acts jurisdiction. Still, in determining a significant nexus between wetlands and navigable waters, the engineers interpretation is entitled to deference. Unless their interpretation is arbitrary, unreasonable, and manifestly contrary to the statute, it must prevail. It is not necessary to federal jurisdiction, said the court, that wetlands be adjacent to navigable waters. Congress clearly intended that the Clean Waters Acts jurisdiction would extend to bodies of water exhibiting a hydrological connection to traditional navi-

gable waters. There is a symbiotic relationship that must be respected. Symbiotic relationship? Hydrological connection? In the name of the founding fathers, what are we talking about? The federal governments case against John Rapanos hangs on gossamer threads. Under the Constitution, Congress has power to regulate commerce among the several states and to provide for the general welfare of the United States. Here there is not the slightest evidence that the Rapanos wetlands figure in interstate commerce. We are not talking of national parks that contribute to the general welfare. We are talking about federal control over a drainage ditch 20 miles from Saginaw Bay in the sovereign state of Michigan. Faithful readers have tolerated me for nearly 60 years as an unreconstructed defender of the 10th Amendment. If Michigan wants to pursue its case against John Rapanos under its own laws protecting its own wetlands, it has that power. Until then, sound constitutional doctrine requires that those 50 soggy acres be off-limits to the feds. (Letters to Mr. Kilpatrick should be sent by e-mail to kilpatjj@aol.com.) COPYRIGHT 2005 UNIVERSAL PRESS SYNDICATE This feature may not be reproduced or distributed electronically, in print or otherwise without the written permission of uclick and Universal Press Syndicate.

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