In 2005, Mike and Chantell Sackett bought a piece of land from a friend. They planned to build a house on it. While the lot was near Idaho’s beautiful Priest Lake, it was part of an existing subdivision, and it already had a sewer hookup. There were other houses nearby — including a row of them between the Sacketts’ lot and the lake.
“We went to the county and paid our fees, got a building permit, and went through the checklist,” Mike remembers. “Then the EPA shows up.”
#ad#The Environmental Protection Agency claimed that building on the land would violate the Clean Water Act, which makes it illegal to discharge “any pollutant” into “navigable waters” without a permit. While the Sacketts’ land contains no waters that are “navigable-in-fact,” as the legal jargon has it, the EPA has defined “navigable waters” to include wetlands that are adjacent to actual navigable waters such as Priest Lake. In 1985’s United States v. Riverside Bayview Homes, Inc., the Supreme Court upheld this expanded definition, though in a more recent case it kept the EPA from regulating wetlands that aren’t even connected to navigable waters.
When the Sacketts filled part of the lot with dirt and rock, the EPA issued a “compliance order,” defiance of which carries a fine of $75,000 a day, instructing them to return the lot to its previous, undisturbed state.
The Sacketts wanted to prove in court that their lot didn’t contain wetlands, and the Pacific Legal Foundation, a libertarian public-interest law firm, took their case. But the EPA denied them any sort of hearing whatsoever. In a 9–0 decision last week, the Supreme Court ruled that property owners may sue the EPA once it has issued a compliance order — but the Sacketts’ underlying case is far from over.
Why does the EPA believe the Sacketts’ land constitutes “wetlands”? The issue has not yet been argued in court, thanks to the EPA’s refusal to grant the Sacketts a hearing until the Supreme Court ordered it. But the Sacketts’ lead attorney, Damien M. Schiff of the Pacific Legal Foundation, suggests that the federal agency made little effort to make a scientific determination. “Part of the absurdity is that the EPA has never, to our knowledge, done any on-site tests,” Schiff says. “They appear to be using an eyeball determination, which is completely inadequate.”
Schiff says there is a three-part test to determine whether land constitutes wetlands: It needs to have certain kinds of vegetation, a certain type of soil, and a certain type of hydrology. The Sacketts’ lawyers have had experts do the needed tests, and plan to argue that the land does not meet these criteria. “It’s fair to say that we’re not going to limit ourselves to any one of those,” Schiff says, though he declines to be more specific.
Without more details, it’s difficult to predict the Sacketts’ chances. Schiff concedes that “the courts traditionally give deference regarding the technical and scientific issues that the EPA resolves” — but nonetheless says he “expect[s] that the EPA will not win, because there is little or no evidence to show that there are wetlands.” The EPA’s press office failed to respond to Schiff’s comments in time for publication.
[Update: Read the EPA response here.]
Even if the Sacketts lose in court, the fight won’t be over. In a concurrence in last week’s Supreme Court decision, Justice Samuel Alito took the somewhat unusual step of calling out Congress for its vague language, encouraging the legislative branch to clarify the Clean Water Act. Kentucky senator Rand Paul — along with eight Republican co-sponsors — is hoping to do just that.
Paul’s Defense of Environment and Property Act of 2012, which he introduced in February, extensively defines the term “navigable waters,” limiting it to waters that either are “navigable-in-fact” or are “permanent, standing, or continuously flowing bodies of water that form geographical features commonly known as streams, oceans, rivers, and lakes that are connected to waters that are navigable-in-fact.” It explicitly excludes “wetlands without a continuous surface connection” to a body of water.
There has been no vote on the bill so far. “As far as when we’re going to see it come up, I’m not sure,” says Paul spokeswoman Moira Bagley. “I think that Senator Paul is continuing to press this issue to all of his colleagues, Democrat and Republican. . . . We’re hoping that when people see how out of control the EPA is, we’ll be able to get bipartisan support.” Bagley adds that a companion bill is likely to be introduced in the House this week.
In the meantime, Mike Sackett is optimistic. “My feeling on the odds is, what were the odds of us getting into the Supreme Court?” he says. “We know our land isn’t wetlands. We hired professionals to come and do a delineation. If they want to come and fight, we will fight until the house is built.”
— Robert VerBruggen is an associate editor of National Review. Twitter: @RAVerBruggen.