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Puddle Jumpers in the Great Lakes State

The EPA's twenty-year war to make everything a wetland

Shikha Dalmia
October 24, 2005

You can count on your constitutional due process rights if you are a thief, a rapist, or a murderer. But if you're accused of committing a crime against the environment, you may as well tear up the Constitution and bury it in a landfill—or better yet, send it for recycling.

That, at least, is the message of the legal tactics that the government has employed in its two-decade-long crusade against John Rapanos, a Michigan developer. Rapanos' crime? He shifted sand from one part of his property to another without a wetland permit, a felony under the Clean Water Act.

Rapanos' legal saga, which has had more twists and turns than a snail darter in heat, came closer to its dénouement earlier this month when the U.S. Supreme Court agreed to hear his appeal in the civil case against him. (The Supreme Court declined to hear the companion criminal case two years ago.) If Rapanos loses, he faces a whopping $10 million in fines, $3 million in environmental mitigation fees and forfeiture of 80 acres of his property.

This is in addition to the $185,000 in fines and 200 hours of community service Rapanos has already received for the criminal conviction. He escaped a jail term the federal prosecutors wanted to impose on him only because Judge Lawrence Zatkoff, the federal district court judge who presided over the trial and witnessed the prosecutor's underhanded legal maneuvering first hand, rejected the prosecutor's demand earlier this year.

In fact, so prejudicial were some of the government's tactics that Judge Zatkoff ordered a new trial after the jury broke its deadlock and convicted Rapanos on the criminal charges in 1997. However, later that year, the 6th Circuit Court—notorious for its soft spot for big government causes—overruled Judge Zatkoff.

Rapanos' troubles began back in 1985, when he decided to develop 175 acres of farmland he had bought in the 1950s in bucolic mid-Michigan. With the exception of two small areas, his property was bone dry, thanks to its sandy soil and the drainage ditches the county had dug in the area at the turn of the century.

Because Rapanos was not planning to touch the wet spots, he began to clear shrubs and even out the sand to prepare his land for development without feeling the necessity of obtaining a wetland permit. That's when agents from Michigan's Department of Natural Resources (DNR)—the state enforcement arm of the federal Environmental Protection Agency—showed up at his door with cease-and-desist orders, their first of many visits.

Rapanos, by all accounts, is rude, arrogant, and obscene. In other words, he's precisely the kind of person whom—Judge Zarkoff notes—"the Constitution was passed to protect."

But Rapanos cooperated with the agents during the first few visits when it seemed they intended only to inspect his property visually. However, during one visit when Rapanos and his lawyer were convinced that the agents meant to collect soil samples and other evidence to use against him in court, they demanded a search warrant—a perfectly appropriate demand.

But during the 1997 jury trial, the government prosecutors "raked [Rapanos] over the coals"—in the words of a dissenting 6th Circuit Court judge—for electing to exercise his Fourth Amendment rights.

The prosecutors also questioned why Rapanos would insist on a warrant if he was not destroying wetlands. "What were you trying to hide?" the prosecutors demanded. Finally, the attorneys for the government likened Rapanos to a devil and compared his "treeless property" to the "Warsaw ghetto without Jews."

The government's prejudicial conduct and violation of Rapanos' civil rights is not directly at issue in the current case before the Supreme Court. Rather, the court will consider a novel theory that the federal government—backed by the Bush Justice Department—is putting forward to defend its decision to prosecute Rapanos, given that the nearest federally protected navigable water is 20 miles away from his property. The government is arguing that it has the authority to regulate any property whose runoffs could reach navigable waters.

A nod from the court will put virtually every puddle and pond on anyone's property within the reach of wetland bureaucrats. But the question is not only if this would be allowed under a fair reading of the law—although the government's expansive interpretation is audacious, to say the least.

The court also ought to consider this question: How is the federal government likely to use these expanded powers?

Rapanos' treatment suggests a one-word answer: abusively.


Shikha Dalmia is Senior Analyst


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