February 17, 2016

In remembrance …

By M. Reed Hopper Senior Attorney

PLF client and friend, John Rapanos, died on February 10, 2016.  U.S. Supreme Court Justice, Antonin Scalia, died three days later on February 13, 2016.  Ten years earlier, the paths of these two men crossed when the Supreme Court issued an opinion, authored by Justice Scalia, in a landmark case called Rapanos v. United States.

In 2006, the Supreme Court decided Rapanos which became a turning point in Clean Water Act jurisprudence.  PLF represented Mr. Rapanos  who was challenging claims that the Act authorized the Corps of Engineers to regulate every tributary to a traditional navigable water in the Country and any adjacent wetlands.  At the time, Mr. Rapanos owned a 54-acre parcel of crop land in Michigan he intended to develop.  In the process of preparing the land, Mr. Rapanos placed clean dirt and sand in some low lying wet areas the Corps asserted were subject to federal control under the CWA because they were connected through a series of pipes, drains, and ditches to a “navigable water” 20 miles away.  Mr. Rapanos did not obtain a federal permit for his filling activities, which he believed were exempt,  and was charged with both civil and criminal violations.  At his criminal trial, the prosecuting attorneys asked the judge to sentence Mr. Rapanos to 10 years in prison.  But the Judge said he would not put a U.S. citizen in jail for ten years for moving sand from one end of his property to another.  “That,” said the Judge, “ was our system gone crazy.”  Mr. Rapanos truly was the victim of a “system gone crazy” as evidenced by Justice Scalia’s remarks when Mr. Rapanos’ civil suit reached the Supreme Court.  In a scathing opinion, Justice Scalia rebuked the Corps for its absurdly broad interpretation of federal authority and abusive enforcement of the Clean Water Act. Justice Scalia held the agency had gone too far and did not have authority to regulate all tributaries (and adjacent wetlands) to downstream traditional navigable waters.

The Corps did not take the rebuke well and almost immediately started to undermine the decision with an expansive, but unsupported, interpretation of Rapanos that would allow the Agency to continue pretty much business as usual.  Even some members of Congress tried an end run around the decision pushing for legislation that would give the federal government regulatory control over all waters in the Nation, not just those that are or would affect traditional navigable waters.  You can read my congressional testimony on the aftermath of Rapanos here.

Over the next ten years, things have gotten worse.  Justice Scalia would hardly recognize the Rapanos decision based on the Corps and EPA’s new regulations which claim to “implement” the Rapanos decision.  Whereas the Rapanos decision expressly prohibited the federal government from regulating all tributaries to traditional navigable waters, the new rules expressly authorize the federal government to regulate all tributaries to traditional navigable waters, and much more. Those rules, known as the “waters of the United States” or WOTUS rules, are now being challenged by PLF and many others across the country, including 30 states, as wholly inconsistent with the Rapanos decision.  Had he lived, no doubt Justice Scalia would have some choice words for these agencies when the WOTUS rules come before the Supreme Court for review.

Whatever the future holds for the Clean Water Act, we are grateful for people, like John Rapanos, who are willing to fight for individual liberty at great personal cost.  We are also grateful for members of the judiciary, like Justice Antonin Scalia, who steadfastly uphold our  constitutional rights against abusive governmental actions. Civil liberties are fragile and under constant erosion by grasping government officials.  It takes a vigilant citizenry and strong checks and balances to retain those liberties.  PLF is proud to be at the forefront in protecting your freedoms from overreaching government.

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