On the Clean Water Act: Three That Got Away

The Supreme Court flunked a tough test on April 5. Instead of accepting three cases arising under the Clean Water Act, the court walked away from them. It was not the court’s finest hour.

What happened? The three cases came from Maryland, Virginia and Michigan. In each of them the fundamental question was the same: Does Congress have dominion over roadside ditches and insignificant wetlands? The high court refused to say yes or no. It clammed up.

The cases were important. By refusing to hear them, the high court encourages the Corps of Engineers to pursue its unrelenting grab for power. The court’s laconic orders of April 5 leave unresolved a tangential conflict among the federal circuits. Denial in the Maryland and Virginia cases will leave regrettable 4th Circuit opinions untouched. Denial in the Michigan case will have one highly personal consequence. It means that John Rapanos will go to prison.

What crime did Rapanos commit? This was his horrid offense: Without obtaining a permit from the Corps of Engineers, he dumped clean sand on certain wetlands on his property.

First the facts: Rapanos owns 175 acres in Bay County, Mich. Hoping to sell his property to developers, he began clearing the land in 1988. He retained a consultant, who advised him that roughly 29 to 59 acres might qualify as “wetlands.” Before filling them, he would need a permit from the Corps of Engineers.

Rapanos, a stubborn man, behaved in character. He ordered the consultant to destroy his notes and threatened to fire him if he did not obey. Plunging ahead, he argued that the engineers had no jurisdiction. The contested wetland was 20 miles away from the closest navigable water in Saginaw Bay. The government took him to court. Two trials and a brief trip to the Supreme Court ensued. The 6th U.S. Circuit was not amused by the defendant’s recalcitrance. Rapanos finally was found guilty of violating the Clean Water Act and sentenced to 10 years in prison. In the Supreme Court the case is No. 03-929.

A second clean-water case, Newdunn Associates v. Corps of Engineers, No. 03-637, is not nearly so dramatic. It involves a 43-acre tract in Newport News, Va. Without obtaining a permit, developers began ditching and draining 38 acres that qualified as wetlands. The corps brought a civil action against the company. Newdunn won in federal district court but lost on appeal to a panel of the 4th Circuit.

In the third clean-water case, James and Rebecca Deaton v. United States, No. 03-701, the government successfully asserted its jurisdiction over a 3-foot-wide drainage ditch along a country road near Parsonsburg, Md. The Deaton property is separated from the nearest navigable water by 33 miles of culverts, ditches, dams, shallow ponds, intermittent streams and one insignificant river.

In the 4th Circuit, Judge M. Blane Michael held that under the Constitution’s Commerce Clause, the ditch is a “tributary” of Beaverdam Creek, which is a tributary of the Wicomico River, which empties into Chesapeake Bay. The corps’ asserted jurisdiction “fits comfortably within Congress’ authority to regulate navigable waters.”

Judge Michael’s opinion rested in large part upon the “deference” that he believes a federal court should extend to an administrative agency. He also relied upon precedents from other federal laws predicated upon the Commerce Clause — for example, laws forbidding child labor, kidnapping, racial discrimination in motels, and the transportation of women across state lines for immoral purposes.

Michael’s precedents struck me as somewhere between irrelevant and remote. What does an Atlanta motel have to do with a Maryland ditch? The important thing, it seems to me, is that the three rejected cases have no substantial relation to interstate commerce. It is not as if Rapanos or the Deatons or the Newdunn company had dumped a million tons of carbolic acid into a pristine river. We are talking of petty quantities of fill dirt and sand, trickling into ditches many miles away from the “navigable” waters that are a valid concern of Congress.

Four years ago the high court sensibly held that an abandoned gravel pit in Cook County, Ill., was beyond the reach of the Commerce Clause. The dissenters in that 2001 case (Stevens, Souter, Ginsburg, Breyer) could have compelled review of the three cases by voting to hear them. Instead, they stayed mum. This much is certain. In one way or another, the issues will return.