Everyone wants clean water, and
America's public waterways haven't
always been very clean.
In 1969, the Cuyahoga
River in Ohio was so polluted
by Cleveland's manufacturing
industry that it caught on fire.
Bigger fires had engulfed the river
before, but coinciding as it
did with the rise of the modern
environmental movement, the
spectacle inspired a Time magazine
feature describing a river
that "oozes rather than flows."
In 1970, Nixon
signed the National Environmental
Policy Act, and later
that year he established the
Environmental Protection Agency
to make a coordinated attack on
the pollutants which "debase the air
we breathe, the water we drink,
and the land that grows our food."
But in fighting to reduce the
pollution of air, land
and water, the EPA
has dictated to Americans what
they can do on their property,
even when it has no clear
environmental benefit or exceeds
the agency's authority.
Now, the EPA's broad mandate for the
first time since its creation is
facing a serious constitutional
challenge.
It's a case that started 15 years
ago with a couple living in a small
town in Idaho.
When I was in high school,
I was up there camping.
And fell in love with Priest Lake,
and just had to try and figure out
how to live there.
There's no other place you'd want to
be. It is so peaceful and calm.
Mike and Chantelle Sackett purchased
the tract of land abutting an
easement, which guaranteed them
a prime view of Priest Lake.
They plan to leverage their
background in construction to build
the lakefront home of their dreams.
A few days into construction,
the Sackett received a surprise
visit from the EPA and Army
Corps of Engineers.
They walked on to the property and
said, You need to stop work
immediately. He said, Why?
They said, Because we think you're
filling in wetlands.
The wetlands the government's agents
were referring to was a
residential lot in an established
subdivision with a full sewer hookup
100 yards from the lake and
a county title with no indication
of wetlands status.
There was a nearby ditch draining
into a stream to connect to the
lake. It was separated from the
lot by 30 feet of paved
road, the proximity of the second
land to the ditch, in addition
to the existence of a subterranean
water flow discovered beneath their
lot as they began construction
meant that the residential lot was
a federally protected wetland,
according to the EPA.
Although the seconds faced up to
$75,000 a day for
violation of the Clean Water Act in
the compliance order, the EPA
argued they had no right to
challenge them in court until they
actually took action to impose
and collect the fine, which they
could do retroactively at any time.
With this threat looming over them,
the Sackett's paused construction.
The EPA also wanted the seconds
to remove the gravel they had
poured, fence in the lot, plant
foliage, but the couple refused.
'We want you to fence it, and then
we want you to plant these wetlands
plants.
And then we want you to watch it
for 3 to 5 years and
make notes. And and
we'll be able to look at that.' And
I go, 'Are you kidding me?'
Why would we do that?
I mean, it's a lot in a subdivision.
Do you want to create a wetland?
That was in 2012.
The Sacketts' case went all the way
to the Supreme Court, which ruled
unanimously that the EPA's
compliance orders were indeed
subject to judicial review,
meaning the agency couldn't
retroactively fine the circuits for
being in violation of the order.
As the court challenge was
adjudicated.
Ten years later, Supreme Court
is taking up the next part of that
case, a challenge to how
the agency defines a wetland.
The first decision got
us the right to get into court and
now we hope to finally secure that
victory.
Damien Schiff is an attorney with
the Pacific Legal Foundation, the
nonprofit law firm that is arguing
the case before the Supreme Court
for a second time.
He says a favorable ruling could
finally constrain a federal agency
that routinely bullies landowners.
The big picture is a
dispute that's roiled the
property rights and environmental
law communities for a half a decade,
and that is the scope of the Clean
Water Act.
The EPA and the Army Corps, who are
the agencies that administer this
law, have over the last several
decades, used their regulatory
authority to radically expand
what qualifies as water
in the United States.
The Clean Water Act allows the EPA
to regulate all of the country's
"navigable waters."
From rivers to lakes
to streams to oceanic channels.
But the definition of navigable
water has steadily expanded
since the passage in 1972.
Farmers like Curtis Martin weren't
allowed to add a manmade lake that
increased the biodiversity of his
land because EPA said it violated
the act.
John Duarte almost lost
his farm in California's Central
Valley after EPA fined
him more than $30 million
in restoration fees.
Reason coveraged Duarte's story.
Back in 2017.
These federal prosecutors can come
in like the sheriff in Nottingham,
decide for themselves what they
think a family can pay, decide
for themselves if they want to
destroy a family and take their land
away. If the federal prosecutors can
come on this farm with this set
of facts, there is no farm in
America that is safe from this kind
of prosecution.
The Supreme Court weighed in on the
EPA's expansive authority
to regulate land in a 2006
case in which the agency had tried
to stop a Michigan developer named
John Rapanos from turning
part of his 54-acre property
into a shopping mall, even though
it was more than 11 miles from the
nearest navigable water.
Because the land became swampy in
the spring, as the snow melted, they
argued that Rapanos' development
plan would destroy protected
wetlands.
He sued and a 5-4 majority
vacated the ruling against Rapanos.
But Justice Kennedy declined
to join Scalia's plurality opinion
that would have further limited the
agency's regulatory authority.
Scalia wrote that "The standards
the government sought gave the EPA
and Army Corps of Engineers
jurisdiction over between
270 to 300
million acres of swampy
lands, including half of Alaska
and an area the size of California
in the lower 48 states,
and that landowners spent more than
$1.7 billion a year
obtaining wetlands permits."
Kennedy rejected Scalia's reasoning
and devised the Significant
Nexis Standard, which
gave the government the authority to
regulate the land if
the pollution would "significantly
affect the chemical, physical
and biological integrity of nearby
navigable water." Kennedy's
standard carried the day in lower
courts, but Schiff says
it's far too ambiguous to hold
any longer.
That ambiguity is one
that, unfortunately, EPA and the
Corps have made a little too much
of. And I think that's really what
this case is, is going
we hope to do, is to
to make it clear that
a small ambiguity does not mean
carp blanche to regulate anything.
We also recognize that it's
sometimes hard to tell going
from the middle of a river or a lake
to the shore.
At what point are we still in the
lake or the river? And at what point
are we now on solid ground?
And that transition zone oftentimes
is occupied by things like wetlands.
But that, of course, is not what EPA
and the Corps want to do.
They don't really see any need to
have any sort of boundary drawing
problem. They think wetlands on
their own, even wetlands that are de
facto isolated from
any other waters could still be
regulated. That is, in fact,
actually the case for this act.
I mean, there are a lot is bounded
by other developed properties and
roads and there's no surface
water connection from their lot to
any other plausible water.
So they are effectively isolated.
Nevertheless, EPA and the Corps
think that they can regulate their
property as waters of the United
States. So that's the big
differences. Sure, there is some
ambiguity, but it's not nearly
as ambiguous as EPA and the
Army Corps think.
But the EPA argues that it needs
the power to regulate properties
like the Sacketts because human
activity on nearby lands can have
detrimental effect on protected
waters like Priest Lake.
They point to the Clean Water Act's
authorization to regulate land
"adjacent to protected
water." But how far
does adjacency extend?
That question was raised by Justice
Neil Gorsuch in oral arguments.
Despite the fact that there's a
subdivision between this
property and the lake, it's still
adjacent to the lake.
That's the government's view of
that.
And it's adjacent.
Why? What's the definition of
adjacency?
I think we are talking about
adjacency, and that may not be
something that gives you bright line
rules, but it rules out things that
are many miles away.
Sure, the EPA would take that view.
The agencies have told me they do
not draw bright line rules.
They do not think 300 feet is
unreasonable for adjacency.
So how about 3,000 feet?
Could be.
I don't know the answer to that.
Could it be three miles?
I don't think it could be.
Could it be two miles?
Then again, when we start to talk
about miles, that sounds too
far to the to...
One mile?
To me again.
And I see where this is headed.
But but again, I think
so.
So if the federal government doesn't
know, how is a person
subject to criminal time
in federal prison supposed
to know?
So the agency is in recognition
of this problem, make available free
of charge jurisdictional
determinations as to any property.
They also publicize their manuals
and make available on websites...
Their manuals that don't tell us the
answer.
There's no doubt that an important
part of water quality is wetlands
regulation. I mean, nobody denies
that.
But the question is, is that
something that Congress intended
to implement at the federal level
in the Clean Water Act now?
The. Best way to figure that out is,
well, let's look at the text.
The text did it mention wetlands?
If the ruling goes this way, there's
going to be a lot of people
that are afraid that now
polluters are just unshackled to
dump stuff into bodies of water
or, you know, nearby wetlands
that could affect bodies of water.
And we're all going to be worse off
for it.
What would you say to somebody who
has that concern?
Just because the feds don't regulate
doesn't mean that state and local
governments can't regulate.
And in fact, there are examples of
where when the Supreme Court
has limited the scope of the Clean
Water Act in prior cases, some
states decided afterwards, 'okay,
we're going to expand our own state
water quality regulations to
capture those areas that are
now not federally regulated.' Other
states have chosen different paths,
but it's certainly possible for that
to be a supplement
for areas where people think
federal regulation is needed that
may no longer be provided.
Images of burning rivers
can serve as dramatic reminders
of the costs of uncontrolled
pollution.
But that doesn't mean that the
federal government is the best
entity to protect natural resources.
In Florida, the Army Corps of
Engineers has for years overridden
local authorities to divert sludge
from the state's largest lake into
lagoons and estuaries,
introducing toxic algae blooms
that have wreaked havoc on the local
ecosystem and introduced serious
health hazards.
Ironically, in possible violation
of the Clean Water Act it's supposed
to help enforce.
As the Army Corps of Engineers
transferred toxic water
toxic water from Lake Okeechobee
to the east through the C434
Reservoir into the Saint Lucia
estuary and the Indian River Lagoon,
and to the west through the
Caloosahatchee River.
Yes, sir. We have we have
conveyed water out of the system
that has contained cyanobacteria
and harmful algae blooms.
Yes, sir.
And the Corps considers that toxic.
Yes, sir.
It's hard to regulate wetlands
federally and still preserve
traditional state and local
authority over land use.
A big, broad federal law
is oftentimes not the best way to
resolve environmental issues,
not just because it crowds out
state and local efforts, but perhaps
more importantly, it crowds out
private party efforts.
When you have the federal government
threatening significant fines
for any sort of activity that may
affect waters and also
making it much more difficult to do
anything in terms of private
conservation.
Schiff says he expects a ruling in
early 2023.
The more than a decade long ordeal
has taken its toll on the Sacketts
who never completed work on the
home.
But if their case prevails for a
second time in the Supreme Court,
they'll not only have established
the clear right for citizens to
challenge powerful executive
agencies like the EPA in court,
but also the rights of property
owners to improve their lands
without exorbitant compliance costs
and legal threats from the federal
government.
Most private property rights
violations nowadays happen
because of environmentally motivated
laws or environmentally motivated
lawsuits.
And to fight back against that,
you have to go straight to the
statutes themselves.
So a win here to
appropriately narrow
the scope of EPA's in the court's
authority under the Clean Water Act
would be a great achievement for our
multi-decade efforts.