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Rapanos v. United States

Contact:

M. Reed Hopper
(916) 419-7111

Our constitutional way of life got a boost last year from the U.S. Supreme Court when the court rejected the idea that federal officials have unlimited control over every pond, puddle and ditch in our country.

"Supreme Court Reins in Clean Water Act," was how the Washington Post reported Pacific Legal Foundation’s landmark victory in Rapanos v. United States. John Rapanos, the Michigan landowner represented by PLF attorneys, had been subjected to federal micromanaging for years, under the Clean Water Act, even though his land is miles from any "navigable" water. In the Rapanos ruling, five members of the Court found that the Army Corps of Engineers outrageously exceeded its authority and provided no justification for trying to assert federal power over the Rapanos property.

Unwilling to accept the Corps' expansive implementation of the Clean Water Act, the majority wrote that lower courts needed to look again at Rapanos' case — with the feds’ bearing the burden of showing that there is a substantial nexus between his property and a navigable waterway.

However, even though PLF’s victory checked the regulators’ power grab in this particular case, more work – more litigation – is needed to keep federal bureaucrats from pushing beyond a strict, constitutionally limited application of the Clean Water Act. Indeed, the Corps continues to act as if Rapanos was just an aberration and not a binding restriction on federal power. Therefore, PLF will continue to prosecute a series of cases in the lower federal courts, in what we are calling our "Rapanos Enforcement Project." The ultimate aim is to vindicate the Rapanos opinion of Justice Scalia (joined by three other justices) who declared there must be a direct link with navigable waters to justify federal regulation of private property under the Clean Water Act.

The newest development in our Rapanos Enforcement Project is the petition filed by PLF attorneys in June, 2007, asking the Supreme Court to hear Johnson v. United States.  A case out of Massachusetts, Johnson challenges the Corps’ claim that the bog on Charlie Johnson’s cranberry farm constitutes “wetlands” subject to federal jurisdiction, even though Charlie and his family created the bog and it’s miles from any navigable waters.

Case-related documents

• U.S. Supreme Court Decision
• Court Briefs and Other Resources
• Congressional Testimony
• Press Releases
• Rapanos Video
• Rapanos Weblog