James J. Kilpatrick

In recent years, a highfalutin term of art has wandered impressively into federal jurisprudence. The term is "hydrological connection." If this critter wanders your way, run for the hills! The feds may be coming.

That prudent advice stems from a recent filing at the Supreme Court. The case is Gerke Excavating Inc. v. United States . It involves one more grab for power by the Army's Corps of Engineers.

The Corps long ago asserted its dominion over all domestic waters "which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce." Not content with interstate jurisdiction, which might rest upon a plausible constitutional foundation, the Corps currently asserts power by it own regulations over:

"All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce."

Are birdbaths next? Children's play pools? The rhetorical questions are writ sarcastick -- but in the pending Gerke case the sarcasm surely is deserved. The case involves a piddling little 5.8-acre piece of land in Tomah, Wis. (pop. 8,525), an hour's drive east of LaCrosse. A jurisdictional link to the Commerce Clause is a link of limp spaghetti.

This is the pasta tie: On the west side of the tract is a drainage ditch. This ditch is non-navigable. It runs, when it runs at all, into a creek. The creek also is non-navigable. It trickles into the Lemonweir River. The river too is non-navigable, but it feeds into the Wisconsin River, a navigable source that finally flows, interstate-wise, into the mighty Mississippi. You can hear the cri de Corps: Praise the Lord! Now we got jurisdiction!

In its opinion last June in the Gerke case, a panel of the 7th Circuit professed no interest in such geography. "Obviously," said Judge Richard Posner, "filling in a 5.8-acre tract is not going to have any measurable effect on the depth of the Wisconsin or Mississippi rivers." Then, having given the game away, Posner took it back. "The sum of many small interferences with commerce can be large, and to protect commerce Congress must be able to regulate an entire class of acts if the class affects commerce, even if no individual act has a perceptible effect." And there go the ice tray and the family tub. They're become waters of the United States.


James J. Kilpatrick

James J. Kilpatrick has been reporter, editor, columnist, commentator, and briefly an adjunct professor of journalism.

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