Wetlands Cases: Rapanos and Carabell

A picture taken at the property under dispute in Carabell v. United States Army Corps of Engineer, located in Macomb County, Mich.

High Water Mark?

The U.S. Supreme Court has heard oral arguments in the Rapanos and Carabell cases. The central issue is whether regulators interpreted federal water laws too broadly — or indeed, whether Congress exceeded its constitutional powers in those laws. The court’s ruling could curb federal overreach in many areas of regulation.

Compensation for regulatory takings is an important goal of property rights reform. But property rights can also be buttressed by ensuring that regulators and elected officials don’t overstep their regulatory powers.

The potential for regulatory excess is considerable. Legislators frequently delegate their regulatory powers in vague terms to unelected rule-makers. These regulators are then tempted to read their power broadly, and they have fewer reasons to consider voters’ objections.

Consider two legal disputes: Rapanos v. United States and Carabell v. United States Army Corps of Engineers. In these cases, Michigan families and their business associates have objected to federal wetlands regulation of their properties. Federal regulators have claimed jurisdiction on grounds that the properties’ runoff could affect "waters of the United States," even though navigable waters are distant from the properties. If these lands are subject to tight federal scrutiny, properties all across Michigan, a peninsula, are as well.