Michigan Wetlands Cases Allow U.S. Supreme Court to Overturn Federal Regulatory Power That Is “Too Expansive,” say Mackinac Center Analysts

The U.S. Supreme Court’s decision to hear the cases is a natural extension “of the court’s jurisprudence for the last decade”

For Immediate Release

Contacts:

Patrick J. Wright, Senior Legal Analyst
Phone: (517) 518-0339

Russ Harding, Senior Environmental Policy Analyst
Phone: (989) 430-8664

MIDLAND, Mich. — Analysts at the Mackinac Center for Public Policy today commended the U.S. Supreme Court’s decision to hear three cases — two of which originate in Michigan — regarding the jurisdictional scope of the U.S. Clean Water Act. In one of the Michigan cases, Rapanos v. United States, a landowner in Bay County was fined by the federal government for allegedly filling in wetlands without a permit, and in the other, Carabell v. Army Corps of Engineers, landowners in Macomb County brought suit after the Army Corps of Engineers rejected their request for a permit to fill land on their property.

"At issue in these cases is what the federal government can and cannot regulate under the Constitution’s ‘commerce clause’ — a matter that has been at the forefront of the court's jurisprudence for the last decade," said Mackinac Center Senior Legal Analyst Patrick J. Wright. "The question will be whether the actions in the two cases should be regulated, if at all, by the states, rather than Congress."

The federal government has traditionally been able to regulate the nation's navigable waters under the Constitution's commerce clause. The landowners in both Michigan cases claim that the area alleged to be a wetland is too distant from navigable waters to be connected to them, while the federal government argues that if the water from the property could theoretically reach a navigable water, federal jurisdiction is proper.

Wright said: "The federal government’s claim of jurisdiction on grounds that water from an otherwise isolated water source might somehow still reach a navigable water is a sort of ‘one-drop rule.’ It’s too expansive. It gives the federal government almost unlimited jurisdiction over land-use regulation, an area that has traditionally been governed by the states. The Founding Fathers did not intend for the U.S. Constitution’s commerce clause to allow for such sweeping federal regulation."

Russ Harding, senior environmental policy analyst for the Mackinac Center and a former head of the Michigan Department of Environmental Quality, added: "In 2001, the Supreme Court threw out the absurd ‘migratory bird rule,’ which held that the U.S. Army Corps of Engineers could regulate isolated wetlands because ducks and geese cross state lines. I’m hopeful the Supreme Court will throw out this idea that a possible ‘hydrological connection’ allows them to regulate any wetlands in the country. It amounts to a ‘migratory water molecule rule,’ which is an even greater regulatory stretch than the migratory bird idea."

Harding actually dug more than 40 holes on one of the Rapanos sites and concluded it is unlikely that a wetlands ever existed on the property. The Supreme Court will not revisit whether the property was a wetland, however, and will instead accept the lower court finding that it was.

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