Most people probably think “wetlands” should be wet. But not in the view of federal bureaucrats. Land can be perfectly dry–indeed, never have the slightest pool of standing water–and still be a “wetland” in Washington’s view. And it turns out that having the Supreme Court on your side isn’t enough to protect you.
After hundreds of thousands of dollars in attorneys fees and 14 years of court battles with no end in sight, Michigan’s John Rapanos finally gave up his fight to defend himself against accusations that he illegally filled wetlands on his private property in violation of the Clean Water Act.
Despite winning his case in the U.S. Supreme Court, Rapanos recently settled it with the federal government. He agreed to pay fines and mitigation fees approaching $1 million. Federal prosecutors immediately hailed the settlement as a vindication of their virtually limitless power to regulate local wetlands nationwide.
But this settlement only demonstrates the inability of individual citizens to stand up for their rights against the overwhelming resources of Big Government.
The federal Clean Water Act prohibits the discharge of fill material into “navigable waters” and expressly recognizes the rights and responsibilities of state governments to protect and maintain local waters. Who could have foreseen that federal bureaucrats would stretch the language of the law to encompass mostly dry, inland wetlands lying in the middle of a Michigan cornfield?
Certainly not ordinary citizens like Rapanos, whose private property was 20 miles away from the nearest navigable waterway. No wonder he told federal officials to take a hike when they accused him of a federal crime for the ordinary activity of “moving sand from one end of his property to another,” as one judge described it.
But federal bureaucrats in the Army Corps of Engineers and the Environmental Protection Agency are not used to being ignored. Rapanos was perceived as a threat to the agencies’ ever-expanding claim of authority. So they sued Rapanos criminally and civilly.