How far from a navigable waterway does the jurisdiction of the United States Army Corps of Engineers reach? In Rapanos v. United States, the United States Supreme Court will determine whether a man-made, non-navigable drainage ditch is a “navigable water” under the federal Clean Water Act. This decision will determine whether the Corps can require a wetland fill permit on the Rapanos property, but it may also have far-reaching consequences impacting the balance between federal and state regulatory power, affordable housing, local land use control, federal environmental protection and even the extent of the federal government’s control over rebuilding in swampy areas devastated by Hurricane Katrina.
In 1988 John Rapanos, now a 70-year-old grandfather of six, cleared vegetation and filled 50 acres of Michigan wetlands he owns with dirt and sand to prepare the site for the construction of a shopping center. This property is at least 11 miles from the nearest navigable waterway. Arguably this land is not wetlands because it is surrounded by drainage ditches constructed in the early 1900’s to make the property suitable for farming.
The Environmental Protection Agency (EPA) ordered Rapanos to obtain a wetland fill permit from the Corps, but he ignored it. Facing numerous charges in federal court for violating the federal Clean Water Act, Rapanos was fined $185,000, placed on three year’s probation and still potentially faces $13 million in penalties and mitigation fees. In 1995, Rapanos was convicted on a criminal violation of the Clean Water Act that carries a maximum penalty of 16 months in prison, which Rapanos might have to serve if the Supreme Court rules against him.
The authority exercised by the federal government under the Clean Water Act is based on the Commerce Clause of the United States Constitution, which gives the federal government authority to regulate commerce among the states, including commerce upon navigable waters. The Supreme Court previously expanded this jurisdiction to include tributaries of navigable waterways and wetlands adjacent to navigable waters.
The Clean Water Act was enacted to prevent sediments and chemicals from polluting navigable waters. “Navigable waters” are defined in the Act as “the waters of the United States,” ignoring the common law standard of whether a boat can float. The issue in the Rapanos case is whether the federal government has jurisdiction over wetlands that are part of the same drainage area or tributary system as a navigable waterway, or if the wetlands must abut the waterway. The Corps asserts that water from the Rapanos property drains into the drainage system that empties into a creek that flows into the Kawkawlin River and, thus, the drainage ditches are “tributaries” of a navigable waterway.
The amicus curiae brief filed by the National Association of REALTORS® (NAR) contends that ditches, culverts and other man-made drainage conveyances do not have a “significant nexus” to navigable waterways. Private property owners and developers maintain that a decision for Rapanos will help keep housing costs at an affordable level by curbing excessive federal regulation and unnecessary permitting that can add thousands of dollars to the cost of a home without providing any environmental benefit.
If the Court finds that the Corps does not have regulatory authority over these wetlands, jurisdiction will shift to state and local government. Developers would still need permits, but not the permits from the Corps that may cost tens or even hundreds of thousands of dollars and take two or more years to obtain. Such a finding would also validate local government’s authority to balance natural resource preservation with the need to provide affordable housing and orderly growth.
When the Court heard oral argument on February 21, 2006, it was the first environmental case heard by newly appointed Justice Samuel A. Alito, Jr. and Chief Justice John G. Roberts, Jr. Court observers are anxious to see whether the new justices will limit federal regulatory power in favor of state and local control. A decision is due by the end of June.