Benjamin Barr

When a Puddle is Just a Puddle

Posted on June 21, 2006 | Author: Benjamin Barr
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What takes an average of more than 700 days and costs $250,000?  If you answered, "getting permission from the U.S. Army Corps of Engineers to fill your wetlands," you'd be right. Fortunately, a new U.S. Supreme Court ruling may reduce the Corps' reach on private land.

In Rapanos v. United States, the U.S. brought enforcement proceedings against Michigan resident John Rapanos for depositing fill material in his wetlands without a permit.  Those wetlands were connected with drains and ditches connecting to navigable water some 10 or more miles away.  The Corps said the wetlands fell within federal jurisdiction because they were "adjacent to other waters of the United States." 

For a century, the Supreme Court narrowly defined "waters of the United States." In the 1977 Clean Water Act, Congress granted the Corps authority to administer this law, which has expanded the definition of waters to include formations like mudflats, prairie potholes, and wet meadows.  By defining waters in such broad terms, the Corps enjoys nearly unfettered power to regulate just about any property. 

But sometimes a puddle is just a puddle.

This time, the Supreme Court sent the case back to the Sixth Circuit to judge whether the ditches near each wetland really constitute "waters." If the Sixth Circuit restores some meaning to the term, it will be a long overdue step toward reining in the vast power of this federal bureaucracy.

Benjamin Barr is a constitutional policy analyst with the Goldwater Institute Center for Constitutional Studies.

Key Links:

- Rapanos v. United States: Plurality opinion
-Pacific Legal Foundation: Rapanos v. United States:  Background, Blog, and Briefs

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