Hawaii property owners, especially
those near the ocean or a stream, should pay special
attention to the U.S. Supreme Court’s latest decision
interpreting the federal Clean Water Act.
The Act is designed to keep pollution out of “navigable
waters,” but what does that term mean? The answer is not as
simple as it may appear.
As strange as it sounds, “navigable waters” includes much
more than waters that are actually navigable. The Army Corps
of Engineers, the agency tasked with enforcement, defines
the term very expansively to include drainage ditches,
isolated marshes, patches of desert, and anything adjacent
to them. If there might be a “hydrological connection”
between your land and actually navigable water, these
all-embracing regulations require you to obtain a permit
before you do anything that might impact navigable waters
even miles away.
An example of how this regulatory power was abused is the
case of John Rapanos, a Michigan property owner whose appeal
was decided by the U.S. Supreme Court in July. The federal
government is pursuing Mr. Rapanos because it claims he
needed a Clean Water Act permit before he moved sand from
one side of his cornfield to the other. The government
claimed his cornfield contained “wetlands,” which are
“navigable waters” because they have a hydrological
connection to a river twenty miles away.
Mr. Rapanos’ legal odyssey was only just beginning. When he
refused to obtain the permit, the government convicted him
of a federal crime, sought to throw him in federal prison
for 10 years, and fined him $185,000. As if that was not
enough, the government also sought civil fines of $10
million, mitigation fees, and forfeiture of half of his
land.
Finally, after twelve years of trials and appeals, his case
reached the Supreme Court, which ruled that the government
overstepped its authority. The Court struck down the
regulations, but could not agree why they were unlawful.
Four Justices said that in order to subject isolated
“wetlands” to Clean Water Act regulations, the government
had to show the nearby water is relatively permanent (such
as the ocean or a stream), and there is a continuous surface
connection between the property and that water. Four
dissenting Justices said that the regulations were perfectly
acceptable as they were, and would have upheld the penalties
against Mr. Rapanos. The remaining Justice, Anthony
Kennedy, said that the determination of whether property
contained federal wetlands should be decided case-by-case to
determine whether there was a “significant nexus” to
actually navigable waters.
In the end, the Court could not agree on anything but the
result: the Corps had gone too far, and its regulations were
invalid. Unfortunately, the 4-4-1 split and resulting lack
of clear direction from the Court has left farmers and
ranchers in just as much uncertainty as they were before the
decision.
Even a careful property owner can only speculate whether a
seemingly isolated wet patch of land, ditch, or drain –
however remote and insignificant it may appear – may be
somehow connected to traditionally navigable waters.
Property owners act at their peril, because even innocuous
actions may result in a violation.
Hawaii owners may be especially at risk, because no land in
Hawaii is more than a few miles from the ocean, and most
farms and ranches are much, much closer. Nearly any
seemingly isolated drain, ditch, or moist soil may later be
shown to have an invisible hydrological connection to the
ocean. Does this mean you need a federal Clean Water
Act permit before you risk undertaking routine tasks on your
own property? Under the inconclusive Rapanos decision, your
guess is at least as good as the Supreme Court’s.
The Corps has been urged to scale back its ambitions and
revise its regulations to impose more reasonable rules.
Historically, however, the Corps has resisted change, even
when mandated by the Supreme Court. Revised
regulations, even if eventually enacted, are likely years
away. In the interim, it is up to the lower courts to
try and apply the fractured Rapanos decision, leaving
property owners to guess whether their activities may put
them at risk.
If five Supreme Court judges cannot agree on a definition of
“navigable waters,” it hardly seems fair that property
owners are now tasked with determining whether their
activities might require a Clean Water Act permit, chancing
imprisonment and fine if they turn out to be wrong.
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