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The Clean Water Act grants the federal government control over toxic discharges into “navigable water.” Imagine, then, the surprise of John Rapanos, who stands accused of violating the Clean Water Act because he dumped sand onto his own land, 20 miles away from any navigable water.
Mr. Rapanos’ land has been drained of standing water since the early 1900s. Even so, while it is not “navigable” and it is not “water,” the EPA says Rapanos’ land is a “wetland” within the reach of federal environmental regulators. Why? Because of a risk that some grains of sand on his property may be carried by rainwater on an epic journey across drains, ditches and creeks to the Kawkawlin River, a navigable body of water some 20 miles away.
The Cato Institute filed a brief in the case arguing that government’s prosecution of Mr. Rapanos exceeds federal authority under both the plain text of the Clean Water Act, which governs “wetland” regulation, and the Commerce Clause. The Supreme Court is hearing oral arguments today.
According to Cato senior fellow Mark Moller, who co‐authored Cato’s brief, and Roger Pilon, director of Cato’s Center for Constitutional Studies: “If the government’s theory were correct, the federal government has all‐encompassing power to designate land, wet or dry, as an environmentally protected ‘wetland’ and sanction land owners with unexpected criminal penalties — all without proving that the land use threatens any real harm to the environment.”
The scholars add: “The federal government is not an all‐purpose zoning board. It claims a power that extends far beyond the farthest reaches of its constitutional authority — even under Gonzales v. Raich, the Court’s broadest reading of federal power to date. Raich held that Congress, at a minimum, must clearly state its intent to push the limits of federal power. Congress, however, has done no such thing.”
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