What is a “wetland”?
This is not a trick question, but it is important that we get it right.
It is the key to an issue that goes to the very core of what constitutes a free country: the right to own and control property.
Most reasonable people would give a simple answer to that simple question: A “wetland” is a wet land — land that is under water at least most of the time. When people think of wetlands they see bogs, marshes and swamps. It’s as simple as what the definition of “is” is, or so it would seem.
It was hoped that the Supreme Court could come up with a workable definition for us but no! On June 19, the high court, in a 4-1-4 decision, sent two wetlands cases (Rapanos v. United States and Carabell v. Army Corps of Engineers) back to a federal appeals court, leaving landowners across America twisting in the wind.
It takes hundreds of lawyers, buckets of cash and many years to fight the federal government. When faced with legal action, fines – even jail time – most property owners have no choice but to knuckle under.
Kelo v. New London, the controversial eminent-domain case that the Supreme Court handed down last year, was bad. These wetlands cases are worse!
Since Kelo, municipalities increasingly have used eminent-domain to rob property owners of their land for purely revenue-enhancing purposes. Under eminent-domain, citizens receive at least some compensation for their land. However, when a federal bureaucrat arbitrarily decides your property is a “wetland,” you get nothing!
I take that back. You do have the privilege of owning the land and paying taxes on it, but you can’t use it. It’s a property owner’s worst nightmare.
“Wetlands” is not a scientific term. It’s a jurisdictional term, largely the contrivance of federal bureaucrats, who worked with environmental groups and friendly courts to expand Section 404 of the Clean Water Act to the point that it has been used to cover mud puddles in back yards.
It was hoped that the new Robert’s court would put a stop to all this. The Chief Justice joined Antonin Scalia’s opinion, as did Alito and Thomas, which bemoaned the fact that there was no majority to end this unconstitutional practice once and for all. Thanks to Justice Anthony Kennedy, who wrote a separate muddled opinion, property owners are still in limbo.
The Clean Water Act was designed to regulate the dumping into and pollution of, the nation’s navigable waters, rivers, harbors, canals, etc.
Just how far upstream can federal regulators go? We still don’t know. At one point it was so bad that if you dug down 12 inches and found moisture – not water, just moisture – for seven consecutive days during the growing season, you had yourself a wetland, even if the moisture came from a garden hose. Also, if you planted some pampas grass or any kind of plant that can grow near a pond or swamp, or brought in some fill that contains soil commonly found in these places, the feds could declare it a wetland
John Rapanos and June Carabell, who fought the federal government for the right to develop land they owned in the state of Michigan, are modern day freedom fighters. They deserve our admiration and support as does the Pacific Legal Foundation, which took on the feds for Mr. Rapanos.
The Rapanos’ property is bone dry and hasn’t been underwater since Noah’s flood, but there was this man-made drainage ditch to channel water from an occasional downpour, which, in theory, could allow a drop or two of that water to flow into the Kawkawlin River, more than 20 miles a way. It’s a remote possibility but it could happen.
The Carabell property had a few mud puddles isolated by a berm between the tract and the nearest drainage ditch. There was no way for water from the puddles to reach a “navigable water” but the mud puddles were enough to cause the feds to step in.
The wetlands regulations, like the Endangered Species Act, have been used to rob citizens of the use of millions of acres of private land. These issues are far too important to be left to a few people in black robes who have their jobs for life.
We must demand that Congress rewrite the Clean Water Act and the Endangered Species Act, just as we have demanded our elected representatives take action against the abuse of eminent-domain. Until these things happen, no property owner is safe.