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NOLAN FINLEY

Finley: A victory for private property rights

Nolan Finley
The Detroit News

I wish John Rapanos had lived to see this day.

Rapanos was the Midland developer who was made a martyr for the Constitution when the federal government used its full force to attempt to coerce him into surrendering his private property rights.

Rapanos, who died in 2016, never bowed, even as the fight nearly bankrupted him and destroyed his health.

And now the Trump administration has rolled back the regulatory scheme that made felons of farmers, ranchers and other landowners across the nation for digging ponds, draining puddles and creating swimming holes on their own property.

I met John Rapanos in the spring of 2004 on the 200-acre cornfield he owned along U.S. 10. By that time, he'd already been battling the Environmental Protection Agency for 15 years, and was facing 63 months in prison and $10 million in fines.

Why? Because he moved some dirt around the field to fill in a seasonal mud hole that the EPA decided qualified as a wetland under its expansive view of the Clean Water Act.

The absurdity of the government’s claim was obvious to everyone except the EPA watchdogs and their enforcers in the Justice Department. Rapanos’ land had been crisscrossed with drainage tiles in 1904 and was bordered on all sides by drainage ditches dug by the county. As I wrote then, it couldn't have been a wetland if it wanted to. 

Russ Harding, a former director of the state Department of Environmental Quality, confirmed as much after extensive testing of the soil. U.S. District Judge Lawrence Zatkoff, who presided over the jury trial that found Rapanos guilty, was so convinced Rapanos was being mistreated that he repeatedly tried to either set aside the conviction or issue a sentence much lighter than the Justice Department demanded.

But the feds wouldn’t relent, and the case eventually went to the U.S. Supreme Court, where a split decision led Rapanos to settle the case for a $1 million fine and probation. The court did little to clarify the EPA's authority.

The EPA reasoned that since surface water seeps into groundwater, which eventually drains into rivers, it could claim jurisdiction over just about any piece of ground on which a raindrop falls, writes Finley.

Since then, Rapanos has been a hero to those who believe in the founding principle that the rights of the governed are a shield against the power of the government.

The windmill he was tilting at was the Clean Water Act's vast expansion of the authority Congress gave it over the “navigable waters of the United States.” The original intent was to put under federal oversight the nation’s major tributaries.

The EPA reasoned that since surface water seeps into groundwater, which eventually drains into rivers, it could claim jurisdiction over just about any piece of ground on which a raindrop falls. Under the Obama administration, the EPA broadened the act’s reach even further. 

So now, if a coyote lifts his leg on your otherwise bone-dry property, you’re at risk of being under the agency’s thumb.

The regulation has been used to block mining and development projects, and even backyard playgrounds and driveway extensions. A Wyoming man who dammed a small creek to create a pond for his cows was hit with $20 million in fines. In Montana, an elderly veteran was sentenced to 18 months in prison for digging fire prevention water holes on his land.

It has been one of the greatest government tramplings of private property rights. President Donald Trump vowed to fix it on the campaign trail, and now he’s done it with modifications that restore balance and rationality to the regulation.

But because its Trump, the left and the commentariat are losing their minds, depicting this as a victory for polluters. 

It’s not that. It’s restoration of the guarantee that your land belongs to you, not the government, and while you can’t do absolutely anything you want on it, you should be able to manage it responsibly with minimal interference.

Where ever he is, I hope John Rapanos feels vindicated.

nfinley@detroitnews.com

Catch Nolan Finley on “One Detroit” at 7:30 p.m. Thursdays on Detroit Public Television.