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.
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.
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.
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.