Regulators gone wild

By Jefferson G. Edgens Ph.D.

Among the worst violators of Americans’ property rights are out-of-control regulators who enforce federal environmental laws. Unfortunately, our elected officials and the courts are doing little to rein in these ecological extremists.

The Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (the Corps), along with a plethora of other federal and state agencies, have joined forces in recent decades to expand the terms of the federal Clean Water Act – particularly as it relates to property designated as wetlands – in an effort to address what they perceive as gaps in the law.

In some cases, the fervor with which these environmental regulatory agencies misapply the Clean Water Act has made fugitives of landowners, bankrupted others and left the remainder perplexed about their own property. Two of those landowners – Michigan residents John Rapanos and June Carabel – have been caught in a legal swamp reaching all the way to the Supreme Court.

Despite the fact that his property is 20 miles from the nearest navigable waters, the Corps claims Rapanos illegally altered a wetland. And, while Carabel’s land is connected to Michigan’s Lake St. Clair by man-made ditches, the Corps considers these conveyances “navigable waters” over which it has jurisdiction.

John Toebben, a well-known and environmentally conscientious Northern Kentucky developer, has also endured a running battle with the Corps of Engineers about what constitutes a wetland. The conflict has delayed construction projects and increased costs to home buyers.

A new Bluegrass Institute report cautions that all Kentucky developers and landowners should be concerned about the continued expansion of the Corps’ wetlands definition and its alliance with the EPA and other agencies to apply that definition without restraint. The report states:

“The expanded control sought by these agencies has corresponded to the broadening of their definition of wetlands beyond the traditional designations of marshes, swamplands, ponds or other entities ‘saturated with moisture’ to include ditches, gullies and creeks that flow only after a rainstorm. In states like Kentucky, with its topography and many water bodies, this expansive legal definition of wetlands applies to large swaths of land, including even some urban areas.”

Environmental regulators run roughshod over Rapanos, Toebben and many others partly because Congress has abdicated – perhaps even neglected – its oversight responsibility. The Corps and EPA have seized the opportunity to fill the void and further drive their agenda of allowing government domination of land development to hide behind the premise of protecting water quality.

The threats for property owners have increased during the last 15 years – especially since the 1990s – when the EPA embarked upon what appeared to be a positive, enterprising effort to expand current law to control water runoff. However, it turns out that the agency was acting with regulatory underhandedness and does not have the authority to expand the application of the Clean Water Act to control runoff.

Astoundingly, even environmental regulators themselves are confused about their role in protecting the nation’s wetlands and water quality. This was made abundantly clear by a series of General Accounting Office reports rebuking the Corps for its lack of justification – a legal requirement – in many wetlands decisions.

Even the sages who comprise the Supreme Court find themselves splintered in interpreting the Clean Water Act. Their split decision resulted in Rapanos’ case, which was bound together with Carabel’s appeal, being sent back to the 6th Circuit U.S. Court of Appeals.

However, property-rights supporters can take some solace in the fact that the Supreme Court chastised the Corps for going beyond the scope of the law. Justice Antonin Scalia argued in his brief that a broad definition of “waters of the United States” places the federal government in the seat of being the nation’s land-use “czar.”

Scalia calls the Corps “an enlightened despot” for its treatment of Rapanos and condemned the agency for forcing him to spend 12 years of litigation and face 63 months in prison and hundreds of thousands of dollars in fines simply for “backfilling his own fields.”

But despite Scalia’s strong statements and the court’s attempt to restrain the Corps, the agency knows the court cannot enforce its decision and Congress appears unwilling to intervene.

The losers in all of this are hardworking taxpayers and entrepreneurs who pursue the American dream, including Rapanos and Carabel, who have had their cases sent back to the appeals court for more “fact finding.” In the meantime, they face mounting legal bills, a murky outcome and a regulatory community that is out of control.

– Jefferson G. Edgens, Ph.D., is director of research for the Bluegrass Institute, Kentucky’s free-market think tank.  http://www.bipps.org/