The Hydrological Connection

Posted: Feb 27, 2006 6:43 PM

The nine justices, including the newest one, had no problems with "hydrological." They know how to interpret out-of-town words. They were clearly troubled by a different and deeper meaning of "connection" -- the connection, that is, between the powers vested in Congress under the Commerce Clause and the swampy few acres involved in yesterday's two related cases from Macomb County, Mich.

In the case of John and Judith Rapanos, the critical acres are 20 miles from the nearest navigable waterway. In December 1988 they applied for permission to build a shopping center on the site. There was a drawback: Much of the site probably would qualify as protected "wetlands" under federal law. If so, the property could not be cleared and filled without approval from the Corps of Engineers.

Rapanos is not a man to let bureaucracy get in his way. He hired a consultant to pave the road to permission. When the consultant's report displeased him, he fired the consultant. Convinced that he could clear the land anyhow, he summoned a bulldozer and went to work. Federal agents ordered him to stop. He bulled away. The record suggests that Rapanos is an even-tempered man: He stays mad.

Seventeen years after it all began, the 65-year-old developer now has had his day in court. He was there in tandem with June and Keith Carabell, owners of 19 acres of more-or-less wetland a mile northwest of Lake St. Clair. The owners want to construct a large multifamily condominium development on their property. The state approved their proposal to clear and fill the site, but the Corps of Engineers overruled. In the Corps' view, the Carabells' plan would impair water quality, damage both terrestrial and aquatic organisms, increase the risk of erosion, and impair the overall ecology of the area.

In an effort to salvage the project, the Carabells sought to enjoin the Corps from blocking their plan. Like John and Judith Rapanos, they lost in U.S. District Court. The 6th Circuit affirmed, and now both cases await decision from the high court.

It was Justice Samuel Alito's first day on his new bench. The courtroom was packed for his debut. He listened attentively to counsel, but in the pattern of Justice Clarence Thomas, he asked not a single question. This was probably as well, for Justice Antonin Scalia and Chief Justice John Roberts were in top form. They fed slow pitches to counsel for the owners. On the other side, Justices David Souter and John Paul Stevens set up slam dunks for the government. It was one more day at No. 1 First St., Northeast.

Justice Souter appeared to see no limits to the Corps' authority. His questions to counsel were intended to score these points: Clearly the national government has power to regulate commerce among the states. Therefore, it may regulate the navigable bodies of water that carry the commerce. But federal authority cannot stop with merely a "navigable" requirement. Otherwise, efforts to control pollution on navigable rivers and affected wetlands could be frustrated. The Corps must control the discharge of pollutants into tributaries upstream -- wa-a-ay upstream.

Justice Scalia rose like a hungry shark to Souter's bait. Surely, he observed, there must be some limit to federal authority. Otherwise the Corps could assert jurisdiction over every "trickle" of water in the country. Every ditch or gully -- indeed, every gutter on every roof -- could implicate "waters of the United States." Talk of a "hydrological connection" did not appear to impress Scalia. He understood the reference, but not its constitutional value.

Chief Justice Roberts, pitching in, pummeled Solicitor General Paul Clement with a series of blunt questions going to the limits of the Corps' jurisdiction. The government's position appeared finally to be that there are no limits. "I don't think that's right," Roberts said.

Readers of this column will have guessed that I listened to the oral argument with something less than pure detachment. Yes, the federal government has a prime role in regulating interstate waterways and wetlands that significantly affect interstate commerce. But every state has inherent power to exercise authority over those trickles, drains, ditches, gutters and non-navigable streams that Souter would sweep into the jurisdictional vastness of the Corps of Engineers. John Rapanos may be a rough diamond, but in taking on the feds, he's right. I vote to reverse and remand.