Adjacent Bodies

An article ominously titled Case pits your property rights vs. environment describes the plight of developer John Rapanos, who illegally filled in acres of Michigan wetlands.

Here's how Rapanos operates:

Mr. Rapanos hired a consultant, Dr. Goff, to prepare a report detailing the wetlands on the Salzburg site. Dr. Goff concluded that there were between 48 and 58 acres of wetlands on the site, presenting his findings in the form of a report and a map. Upset by the report, Mr. Rapanos ordered Dr. Goff to destroy both the report and map, as well as all references to Mr. Rapanos in Dr. Goff’s files. However, Dr. Goff was unwilling to do so. Mr. Rapanos stated he would “destroy” Dr. Goff if he did not comply, claiming that he would do away with the report and bulldoze the site himself, regardless of Dr. Goff’s findings.

And that's precisely what he did, ignoring a succession of cease and desist orders in the process. Not surprisingly, Rapanos' sociopathic thuggery turned heads at the Pacific Legal Foundation:

"He's an acerbic sort of guy who just won't bow," said his lawyer, Reed Hopper, whose Sacramento, Calif.-based property rights organization -- the Pacific Legal Foundation -- has taken Rapanos' case. "He's the kind of guy the law was designed to protect."

Which, I guess, explains why Mr. Rapanos was convicted, and why that conviction was upheld on appeal.

At issue is whether these wetlands are adjacent to "navigable waters," as defined by the Clean Water Act. Rapanos, needless to say, insists they aren't; amicus briefs have been filed on his behalf by such dispassionate scientific institutions as the International Council of Shopping Centers and the National Stone, Sand and Gravel Association. Along with other harebrained sophistries, Rapanos' lawyers have proposed that applying the CWA to Rapanos' wetlands would be like applying it to a puddle in which a child is making mud pies; that's pretty goddamn unhinged even by loony-libertarian standards.

The courts have thusfar generally accepted the Army Corps of Engineers' stance that "wetlands adjacent to lakes, rivers, streams, and other bodies of water may function as integral parts of the aquatic environment even when the moisture creating the wetlands does not find its source in the adjacent bodies of water." In the Rapanos case, this view is backed up by briefs filed by 34 states, 4 former U.S. EPA officials, and an array of prominent biologists and botanists. It's also backed up by common sense. It's obvious that bodies of water need not directly abut one another to affect one another, and that these hydrological connections can have serious implications for public and environmental health.

It'll be interesting to see how Roberts and Alito rule.