Washington, D.C., September 30, 2011— The Competitive Enterprise Institute today filed an amicus brief urging the U.S. Supreme Court to allow property owners to promptly contest federal agency directives imposing wetland restrictions on private land.
Federal agencies are increasingly defining dry land as “wetlands” and “waters of the United States” based on sweepingly expansive interpretations of the Clean Water Act. They then send compliance orders to property owners, restricting use of their property. The test for what is a wetland has become so vague that owners often cannot figure out the status of their property without a court ruling. But the government claims that courts cannot decide this issue unless the owners first go through lengthy permit proceedings or unless they’ve been hit with potentially ruinous enforcement proceedings.
In its amicus brief, CEI argues that the Supreme Court should allow owners to quickly contest these compliance orders in court. In the Sackett v. EPA case, landowners Mike and Chantell Sackett hoped to build a home on their half-acre lot in the Priest Lake area of Idaho’s Panhandle, but four years later found themselves in an unexpected legal battle with EPA. The agency claimed the property was a wetland even though it was in a residential neighborhood with houses on either side of it. EPA told the couple they would have to return the property to its original state and seek a costly development permit, or else be slapped with a fine in the tens of thousands of dollars. What’s more, the agency refused to grant the Sacketts a hearing on its ruling.
According to CEI’s amicus brief, the government’s ballooning interpretation of the Clean Water Act has created a situation in which “even property owners who are aware of the Act are often uncertain whether their property is subject to its requirements, and even the best-intentioned regulators may exceed the limits of their jurisdiction ….”
CEI General Counsel Sam Kazman stated: “EPA is trying to inflate the term ‘waters of the United States’ into ‘moistures of the United States’. In the face of this expanding claim of agency power, property owners desperately need a quick way to obtain clarity in court.”
CEI is represented by Theodore L. Garrett, Mark W. Mosier, and Matthew J. Berns of the law firm of Covington & Burling LLP, who prepared CEI’s amicus brief in this important case.