Government Attempts Dramatic Expansion of Waterway Jurisdiction; Atlantic Legal Files Brief in Opposition

In 2001, the United States Supreme Court ruled in Solid Waste Agency of Cook County v. United States Army Corps of Engineers that the federal government can only exercise jurisdiction over "navigable waters" which are, were or may be in the future susceptible for use in interstate or foreign commerce as provided for in the Commerce Clause of the United States Constitution. Now, despite the Supreme Court’s reasoning that it is the "primary responsibilities and rights of States… to plan the development and use… of land and water resources," a ruling made by the U.S. Court of Appeals for the Sixth Circuit could threaten to undermine that limitation of federal power, giving the federal government possible jurisdiction over 80% of all lands in the United States, and severely undermining the basic principles of federalism.

Atlantic Legal Foundation, in partnership with New England Legal Foundation, filed an amicus brief in December 2005 in support of John and Nelkie Rapanos and Keith and June Carabell, whose two cases have been consolidated into a significant fight for State and individual property rights.

Mr. Rapanos is a Michigan landowner whose property includes wetlands. For failing to obtain the proper permit before filling these wetlands, the federal government has projected its jurisdiction onto his land–despite the fact that the lands are neither navigable nor adjacent to a navigable waterway–and has commenced both civil and criminal proceedings against Mr. Rapanos. The government’s argument supposes that a series of small ditches, such that by occasional chance a molecule of water might migrate from Mr. Rapanos’ water to another un-navigable body miles away which in turn connects to a navigable body of water, places the entirety of Mr. Rapanos’ private waters under the jurisdiction of the Clean Water Act. This theory, accepted by the Sixth Circuit Court of Appeals in United States v. Rapanos and now on appeal, enabled the government to try and convict him as a criminal and to seek $10 million in fines, the forfeiture of 81 acres of property, and $3 million in "mitigation fees" to maintain the property as wetlands. Not satisfied, the government further charged both Mr. Rapanos and his wife in a civil suit. Similarly, in Carabell v. U. S. Army Corps of Engineers, the "wetlands" in question are merely indirectly connected to navigable bodies of water. Both cases, in consolidation, will come before the Supreme Court of the United States. Atlantic Legal Foundation’s amicus brief defends both Carabell and Rapanos against this massive governmental intrusion. At issue are the limits of the jurisdiction granted by the Commerce Clause under U.S. v. Lopez, 514 U.S. 549 (1995) and U.S. v. Morrison, 529 U.S. 528 (2000) and, indirectly, the scope of judicial deference to administrative expertise under Chevron USA, Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984).