Moisturizing the EPA

Property rights advocates had reason to be optimistic this week, as the Supreme Court heard arguments in Sackett v. U.S. Environmental Protection Agency. At stake is landowners’ right to challenge bureaucratic control of their lands without redress or any meaningful right to appeal. The Justices seemed receptive to arguments on behalf of the plaintiffs, Mike and Chantell Sackett. A ruling in their favor would help restore some of the property rights protections that have been eroded over the past century.

The Sacketts had purchased a small lot in Priest Lake, Idaho, to build their home. The lot was in a residential area and they obtained all the necessary permits, graded the lot, and dumped gravel for the foundation. Then the U.S. Environmental Protection Agency (EPA) suddenly declared their lot a federally protected wetland under the Clean Water Act, and told the Sacketts they must restore it to pristine condition or face a fine of $37,500 per day.

They were told they could not appeal until they had exhausted all administrative remedies. Therefore, they must restore the land at considerable cost and then appeal for a permit, a process which could take years and cost tens of thousands of dollars — and likely result in a denial of their appeal. Only then would they be able to go to court — by which time they might be facing bankruptcy. The Sackett case provides the Court an opportunity to revive the orphan child of the Bill of Rights — the Fifth Amendment, specifically due process and the takings clause. For much of the past century, various advocates of big government have run roughshod over property rights. Green activists have consistently used environmental legislation not to protect the environment but rather to impose land-use control at no cost to the government. For property owners, the costs can be staggering — complete loss of the use of their property.

From the day the Clean Water Act was passed, giving the federal government the authority to protect navigable waters, the bureaucrats at EPA and the Army Corps of Engineers have stretched the definition of navigable water beyond all rational bounds to include almost any surface that is ever wet — no matter how seldom, for how short a time, or to what degree or depth. As one attorney has put it, the government is now trying to regulate the “moistures of the United States.”

Rather than work to reduce fill and pollution in the nation’s genuine navigable waters, agency regulators have spent ever-increasing amounts of time harassing small landowners, functionally “taking” their lands by preventing their use, entangling them in costly permit battles that often stretch out over several years, and even imprisoning some of them.

Consider the case of Gaston Roberge, a retiree in Old Orchard Beach, Maine. He owned a commercial lot where he had allowed the town to dump clean fill. Attempting to sell the lot for his retirement, the Army Corps charged him with illegally filling a wetland. After six years and tens of thousands of dollars in legal fees fighting to get a permit, it turned out he didn’t need the permit after all, as his lot was finally designated as not a wetland. He then sued for a temporary taking of his property. During the proceedings, a Corps memo was discovered, saying, “Roberge would be a good one to squash and set an example.”

That is how the Clean Water Act is being used — to set an example in order to prevent citizens from using their own land. The EPA may well be trying to set another example at Priest Lake to slow development. Mike Sackett is in the construction business — who better to make an example of?

At Monday’s hearing, the Sacketts’ attorney seemed to make a strong argument. Most of the justices seemed somewhat angered by the government’s actions, some strongly so. Justice Alito asked: “[D]on’t you think most ordinary homeowners would say this kind of thing can’t happen in the United States?” Justice Scalia said, “It shows the high-handedness of the agency.” Even Justices Sotomayor and Breyer appeared irritated at times.

Rather than wasting taxpayer money to regulate farmers’ stock ponds, the federal government should concentrate on the original goals of the Clean Water Act. Those who believe in a free society and a healthy environment can only hope for a wise decision from the Court — one that will protect landowners’ rights to challenge arbitrary agency designations of dry land as navigable waters. Perhaps we are on the verge of seeing a return to the protection of people’s inalienable rights, as the Constitution was intended to do.