MUDDIED WATERS IN MICHIGAN

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1. 800. 973.1177

COURT REPORTER

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 benefit 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

charges against him for violation of the Clean

gable waters.” There is a “symbiotic relation-

asking the Supreme Court to get him out of a

Water Act. The charges led to repeated trials

ship” that must be respected.

jam he got himself into. Trouble is, the U.S.

and appeals. At one point, U.S. District Judge

Army Corps of Engineers says those acres

Lawrence Zatkoff said the government had

Symbiotic relationship? Hydrological con-

are wetlands, and nobody is going to build

gone “crazy” in its criminal prosecution. Pro-

nection? In the name of the founding fathers,

anything on a wetland without the engineers’

ceedings led finally to a fine of $185,000 and

what are we talking about? The federal

OK.

a sentence of at least 10 months in a federal

government’s case against John Rapanos

prison. John Rapanos is now 70 years old.

hangs on gossamer threads. Under the Con-

Constant readers will recall that I have sided

The sentence is in abeyance.

with John Rapanos before. In person, he

stitution, Congress has power “to regulate commerce among the several states” and “to

may be a most agreeable companion. In this

The separate civil action in U.S. District Court

provide for the general welfare of the United

lawsuit he comes across as a mulish fellow,

led to penalties and mitigation fees that add

States.”

determined to have his own way, no matter

up to several million dollars. Last July a

what. He has managed to raise the hackles of

panel of the U.S. Court of Appeals for the 6th

Here there is not the slightest evidence that

every federal judge (but one), every army en-

Circuit reluctantly affirmed the civil judg-

the Rapanos “wetlands” figure in interstate

gineer and every government witness he has

ment. On Jan. 28, with the help of the Pacific

commerce. We are not talking of national

encountered since the case began. He can be

Legal Foundation, Rapanos appealed to the

parks that contribute to the general welfare.

a Very Difficult Man. But in this controversy,

U.S. Supreme Court. This is a case the high

We are talking about federal control over a

he’s right-on.

court should hear.

drainage ditch 20 miles from Saginaw Bay in

To shorten a long and unhappy story, state

U.S. District Judge Danny C. Reeves, sitting

authorities advised him repeatedly in the

in the 6th Circuit by designation, began by

Faithful readers have tolerated me for nearly

1980s that the several sites were federally

emphasizing that the act’s reach does not

60 years as an unreconstructed defender of

protected wetlands. To develop them, he

extend to all waters. There are jurisdictional

the 10th Amendment. If Michigan wants to

would need permits. Rapanos repeatedly

limits, but these are “far from obvious.” In

pursue its case against John Rapanos under

ignored them. He hired a consultant to be his

two leading cases, the Supreme Court has

its own laws protecting its own wetlands, it

expert witness. When the consultant brought

done little “to clear the muddied waters” of

has that power. Until then, sound constitu-

in a report saying the site was indeed a wet-

the act’s jurisdiction. Still, in determining a

tional doctrine requires that those 50 soggy

land, he fired the consultant.

“significant nexus” between wetlands and

acres be off-limits to the feds.

the sovereign state of Michigan.

navigable waters, the engineers’ interpretaIn April 1989, still without a permit from the

tion is entitled to deference. Unless their

(Letters to Mr. Kilpatrick should be sent by

army engineers, Rapanos began prepar-

interpretation is “arbitrary, unreasonable,

e-mail to kilpatjj@aol.com.)

ing the site for construction. He dumped

and manifestly contrary to the statute,” it

sand over the wetland vegetation. At one

must prevail.

COPYRIGHT 2005 UNIVERSAL PRESS SYNDICATE

site he set bulldozers to building roads. The Environmental Protection Agency sent him

It is not necessary to federal jurisdiction,

a compliance order. He ignored it. The state

said the court, that wetlands be adjacent to

tributed electronically, in print or otherwise

issued a cease-and-desist order. He neither

navigable waters. Congress “clearly intended

without the written permission of uclick and

ceased nor desisted.

that the Clean Waters Act’s jurisdiction

Universal Press Syndicate.

Eventually, the federal government ran out

would extend to bodies of water exhibiting a

of patience and filed both civil and criminal

hydrological connection to traditional navi-

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