NCPA - National Center for Policy Analysis


August 5, 2005

The Clean Water Act (CWA) once applied only to navigable waters. But the vagueness of the Act and several liberal court interpretations have resulted in property owners being punished for what they choose to do on their own land, says Gregory T. Broderick (Pacific Legal Foundation).

The CWA, passed in 1972, prohibits "discharge of any pollutant into navigable water" without a federal permit. However, the narrow definition was challenged by environmentalists to apply to "tributaries of navigable waters" as well.

As a result, the CWA:

  • Defines property as "water" if the soil one foot below is saturated with water for 5 percent of the growing season, meaning about eight to 10 days between spring and fall.
  • Designates almost everything on the ground -- solid waste, rock, sand and even heat from sunlight -- as a "pollutant."
  • Imposes a maximum penalty of 15 years in jail or a $1 million fine for beginning projects without a federal permit.

Michigan resident John Rapanos learned firsthand the absurdity of CWA when he bought a 175-acre cornfield (which was 20 miles from the nearest navigable waterway) for development. He was convicted of violating the CWA for merely spreading a pile of natural sand over the old concrete foundation that existed on the land from a previous house. He was sentenced to 10 to 16 months in federal prison.

Federal District Judge Lawrence Zatkoff reduced his sentence to probation, but the feds have asked the Supreme Court to intervene and increase his sentence. As Zatkoff notes, "the average U.S. citizen is incredulous that it can be a crime for which the government demands prison for a person to move dirt or sand from one end of their property to another..."

Source: Gregory T. Broderick, "The Shifting Sands of the Clean Water Act," Liberty, July 2005.

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