OPINION/COMMENTARY

Another Wetlands Horror Story

Charles Johnson, a 73-year-old Korean war veteran, lives with his wife in rural Carver, Massachusetts, where the Johnson family has farmed cranberries for nearly 100 years. In the 1990s, the United States filed a civil action against Mr. Johnson, his wife, his son, and their business, claiming they discharged into wetlands and other “waters of the United States” without a permit in violation of the Clean Water Act. Mr. Johnson insists that all of his farm work was done in areas where there have long been cranberry bogs and permits are not needed. According to PLF’s analysis, the federal government has no legal authority over the Johnsons’ property. That’s because the plain language of the Clean Water Act and the Constitution limit federal regulatory power to “navigable waters” only, such as a river or lake that can be used for shipping or other commerce, and wetlands immediately adjacent to such waters. This clear limitation was affirmed by the United States Supreme Court in its 2001 decision in Solid Waste Agency of Northern Cook County v. United States (SWANCC). In Mr. Johnson’s case, none of the three areas targeted by the government are within 20 miles of navigable waters. On the contrary, all of the properties are adjacent to nonnavigable ditches and streams connected to other nonnavigable waters that eventually connect to the navigable Weweantic River. Using these tenuous connections, the federal government has subjected Mr. Johnson and his family to relentless prosecution. After spending more than $1 million to defend his family and farm against this government land grab, Mr. Johnson was eventually forced to represent himself because he could no longer afford attorneys. As a result, he was unable to effectively oppose the government’s case against him at the trial level. In January, a District Court judge found for the Environmental Protection Agency, ordering the family to pay a $75,000 fine and to “restore” 25 acres of their property that the government declared “wetlands.” The EPA estimates the restoration will cost them $1.1 million! PLF has stepped in to represent the Johnson family, without charge, in their appeal to the United States First Circuit Court of Appeals. The government’s lawyers do not dispute that Mr. Johnson’s properties are merely adjacent to nonnavigable waters, but contend they are still subject to federal regulation because of their eventual connection to the Weweantic River. According to their argument, the government has jurisdiction whenever, theoretically, one molecule of water from a nonnavigable wetland could reach a navigable water. The government has been pushing this “any hydrological connection” theory ever since the Supreme Court harshly rebuked its earlier “glancing duck” theory that jurisdiction can be based in a high flying bird’s attraction to a small mud puddle....

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