Wetlands law mired in a bog

Tomorrow John Rapanos will stand before a federal judge for sentencing. The purported crime of this mid-Michigan builder is violating the federal Clean Water Act by moving sand in a cornfield he owns and had hoped to develop.

Having investigated the scene of the “crime,” I can attest that Mr. Rapanos’ possible incarceration is absurd. Unfortunately, it is but one example of the current abuses of federal “wetlands” law.

Mr. Rapanos’ cornfield was deemed a wetland by state and federal authorities despite being surrounded by drainage ditches mandated by county drain commissioners in the early 1900s. When I visited the site, having recently ended my tenure as director of the Michigan Department of Environmental Quality, I confirmed that these ditches were in fact keeping the land dry. Moreover, the nearest navigable water — the basis of federal jurisdiction over “wetlands” — was some 20 miles away.

Mr. Rapanos no doubt provoked federal authorities when he worked on this farmland in violation of cease-and-desist orders, but there was little to justify the government’s use of the Clean Water Act.

This law, passed in 1973, restrains people from using public waters without regard for the rights of others, and it prohibits discharge of pollutants into “navigable waters” — defined in the act as “waters of the United States” — without a permit from the U.S. Army Corps of Engineers. Sadly, through creative rulemaking and without explicit congressional approval, the Corps has defined “waters of the United States” as any wetlands that might affect interstate commerce.

Consequently, property owners whose land is distant from any normal understanding of “navigable waters” can find themselves targets of federal wetlands enforcement action. Consider two other recent cases:

(1) Charlie Johnson is an elderly farmer in Carver, Mass., whose family has grown cranberries for almost 150 years. Mr. Johnson was accused of violating wetland laws, but he reasonably observed that even if his property contained wetlands, these wetlands would be many miles from navigable waters and therefore not subject to federal regulation. Still, Mr. Johnson was found to have violated the CWA. In addition to spending more than $1 million to defend himself, he paid a $75,000 fine and hundreds of thousands of dollars in mitigation costs.

(2) Pete Thorson is a Wisconsin attorney who tried to develop 5.8 acres he owns in LaGrange, Wis. A small portion of the property contains wetlands adjacent to a driveway over a culvert. The nearest navigable water is the Wisconsin River, 64 miles away. Faced with potentially millions of dollars in federal fines, Mr. Thorson settled by paying a $105,000 fine.

How can the Corps regulate areas that seem outside the scope of the CWA? Until 2001, the Corps used a “migratory bird rule” it had devised, under which virtually all wetlands were federally regulated using the rationale that birds fly across state lines and use wetlands, thus contributing to “interstate commerce” in sport and tourism.

In 2001, the U.S. Supreme Court struck down the bird rule, so the Corps became more creative. It devised the equivalent of a “migratory molecule rule,” whereby nearly every wetland is under federal jurisdiction since microscopic quantities of water from any isolated wetland might conceivably reach a navigable waterway. This overzealous rulemaking is problematic enough, but landowners cannot even count on consistent application.

A 2004 Government Accountability Office report found the Corps’ district offices differ in how they determine if privately owned wetlands are subject to wetland protection laws. Some districts set a distance from regulated waters to determine jurisdiction, but not all districts that employ this approach use the same distance. Other districts assert jurisdiction if the wetland is in a 100-year flood plain, while others do not consider flood plains.

Congress must act. Neither the executive branch nor the judicial branch has been able to fix wetlands regulation and stop the abuses. Even if the Supreme Court strikes down the “migratory molecule rule,” judicial conflicts and regulatory overreach will continue.

Congress, working with President Bush, must establish unambiguous wetland laws that restrain regulators. It may be too late for Messrs. Rapanos, Johnson and Thorson, but that is no reason to subject thousands of other property owners to the same sort of injustice.

Russ Harding is former director of the Michigan Department of Environmental Quality and is senior environmental policy analyst for the Mackinac Center for Public Policy, a research and educational institute headquartered in Midland, Mich.

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