Uncle Sam's Midland stretch


Friday, November 18, 2005
The Grand Rapids Press

If words have meaning, then those found in the Constitution should lead the U.S. Supreme Court to a swift conclusion in a Michigan wetland dispute. The case asks whether a wetland 20 miles from the nearest open water could in any way come under the heading of interstate commerce or otherwise be eligible for federal control.

The court ought to say "no," just as it did in a similar case in 2001. That '01 dispute centered on the Army Corps of Engineers' attempt to regulate a water-filled Chicago-area gravel pit. The Corps argued that the pit was used by migrating birds that cross state lines and thus fell under federal authority to regulate interstate commerce. The pit also was a federal domain, the Corps said, under the "navigable waters" provision of the 1972 Clean Water Act. The high court's rejection of those lines of thinking was a reminder that federal regulatory powers aren't unlimited.

The current case involves a Midland developer, John A. Rapanos, who in the 1980s pushed sand into a 175-acre site in Bay County, defying state authorities who said the property was a wetland. The U.S. Department of Justice and the Army Corps, citing a lack of a permit for the filling, won a felony conviction of Rapanos in federal court and a sentence that includes a $185,000 fine. The Department of Justice continues to seek prison time. The government also won a civil judgment in which it is seeking $13 million in fines and fees and wants Rapanos to forfeit 80 acres of his land.

The civil case is the one before the Supreme Court, likely to be heard early next year. The Rapanos challenge goes to the very authority of the federal government to be dictating his use of his land. The federal government historically, and rightly, has regulated navigable waters as a function of Constitution's "commerce clause" -- which grants to Congress power to "regulate commerce . . . among the several states."

The Army Corps of Engineers in 1974 interpreted the Clean Water Act's "navigable waters" to include adjacent wetlands as well.

But the Rapanos land is 20 miles from the nearest navigable water, the Saginaw Bay. The Army Corps says it has jurisdiction because of a "hydrological connection" -- that even dribbles from the Rapanos land could migrate through the underground into "navigable waters."

As with the Illinois case, the federal claim in the Rapanos situation goes far beyond the wording of the Constitution and certainly past any probable thinking of the founders. If federal authority can be conveyed via a subterranean "hydrological connection," are there any limits to federal jurisdiction?

And is it reasonable to infer that the Clean Water Act's reference to power over "navigable waters" can mean control over a wetland -- actually a cornfield -- 20 miles from the water's edge? Down that path lies a significant and unjustified expansion of federal control over private property and of land use. It also would endorse a continuing overextension of the commerce clause.

This dispute is not essentially about protection of wetlands. The nation and this state long ago recognized the important function of wetlands and the need to preserve them. The Rapanos case is about what levels of government, under the Constitution, should do the protecting and about where federal regulatory authority begins and ends. The case should turn on the language of the Constitution, the limits on federal powers provided there and the founders' efforts to respect private property. A federal reach 20 miles into Michigan's Bay County would go considerably past those boundaries.

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