This article was originally published by Stand Together Trust.

In 2007, Chantell and Mike Sackett started building a family home on their plot of land near Priest Lake, Idaho. They could never have imagined that 15 years later, that house would still not be built. Instead, they are in an ongoing legal dispute with the Environmental Protection Agency (EPA), with the U.S. Supreme Court set to issue a decision on their case this year -- making it the second time the Sacketts' case has reached the High Court.  

When the Sacketts started building their home, they obtained all the local permits necessary. So, they were surprised when the EPA ordered that they needed a federal permit and that building on their land without one violated the Clean Water Act (CWA). By trying to build their home without a federal permit, the Sacketts would face tens of thousands of dollars in fines a day. 

The obvious problem is that the Sacketts' property doesn't fit the EPA's definition of wetlands protected by the CWA, according to attorneys from Pacific Legal Foundation, the public interest law firm representing the Sacketts and a grantee of Stand Together Trust. 

The EPA only has CWA authority over "the waters of the United States." Wetlands themselves aren't "waters" in the normal sense of that term, and so they can be regulated only to the extent that they have a continuous surface water connection to, and thus are indistinguishable from, such "waters." Importantly, the Sacketts' residential lot has no surface water connection to any "waters." It's surrounded by other developments and roads, separating their property from navigable water.   

Yet, the path to proving this and clarifying when the CWA protects wetlands has been anything but simple.   

Asking the Court for the right to have their day in Court 

In 2008, the Sacketts sued the EPA to confirm it had no authority over their land. But the lower courts tossed their case on the theory that EPA's compliance order was not judicially reviewable.  It was not until 2012, when the case reached the Supreme Court, that the High Court unanimously ruled that the Sacketts did have a right to challenge the EPA's order in federal Court. 

The matter was far from resolved, though. Now the Sacketts and PLF had to return to the trial court to obtain a ruling on the question at the heart of their case: Are the Sacketts correct that the EPA has no authority over their land? 

Once again, after years of adverse rulings in the lower courts, the Supreme Court agreed to take up the Sacketts' case again and heard oral arguments in October 2022. A decision is expected in the spring.  

"Oral arguments were scheduled for one hour but lasted two because of how many questions the Justices asked," said PLF senior attorney Damien Schiff. "All nine justices seemed to recognize that the CWA status quo isn't working. Property owners need clarity because right now, it's hard for people to know what the government considers to be protected wetlands. And the penalties for violating the CWA are huge. We hope the Court will finally provide that clarity." 

Protecting the environment and allowing for reasonable use of land 

The CWA was enacted into law in 1972. According to PLF, the CWA "regulates the discharge of 'pollutants' from 'point sources' to 'navigable waters,' which the Act defines as 'the waters of the United States, including the territorial seas.'" Keeping pollutants out of U.S. waters is a good thing.

In the Sacketts case, however, "none of their neighbors, nobody in the area, had ever heard about the need to obtain a federal wetlands permit, in order to build a home," Damien Schiff said. The Sacketts land has no connection to surface water, does not rest directly along the lake, and has a sewer connection. 

The EPA and the Army Corps, the government agencies overseeing the enforcement of the CWA, have expanded the definition of "navigable waters" far beyond anything Congress (the lawmaking body) intended without Congress telling them to do so. 

This is not unique to the Sacketts, either. 

Take another example -- the story of Jack LaPant, a California farmer and rancher also represented by PLF. In 2011, he wanted to plow a piece of his land to grow wheat. He consulted multiple federal agencies and followed all the CWA rules. Because his property is an active farm, he shouldn't need a permit to plow because Congress built an exception into the CWA for "normal farming practices." That didn't stop the Army Corps of Engineers from monitoring his farming activity and, in 2016, suing him for millions of dollars. 

Ultimately, the years-long legal battle took its toll on Jack, who became particularly worried the case could become a financial burden to his children.  In 2021, he decided to do what he felt was best for his family and settle the case. PLF explains the impact of that decision:  

Even though the Army never proved, the court never ruled, and Jack never conceded that he broke any law, the settlement came at a high cost, with $350,000 in penalty and mitigation payments and easements on hundreds of acres to the federal government. The Department of Justice (DOJ) lowballs the total value Jack surrendered at $1.2 million."

Damien Schiff said executive branch agencies need to perform the jobs that Congress gives them. "Congress makes the law, not the EPA," Schiff said. "When agencies are allowed to abuse their authority, in violation of law, they threaten the separation of powers that is the Constitution's best guarantee of a functioning, fair democracy."  

If the Sacketts' case favors the EPA, it could signal that the federal government can continue to expand the CWA without Congressional authorization and accountability.   

Pacific Legal Foundation is supported by Stand Together Trust, which provides funding and strategic capabilities to innovators, scholars, and social entrepreneurs to develop new and better ways to tackle America’s biggest problems.

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