I would like to rebut the commentary written by the Izaac Walton League in the Oct. 14, 2022, edition in support of the U.S. Environmental Protection Agency’s (EPA) “taking” of private property in the name of protecting the environment.
Up front, I am not a lawyer nor a representative of any conservation organization, and thus have relied on public sources to support my opinion.
Chantell and Mike Sackett have spent the past 15 years locked in a legal dispute with the EPA over their right to build a home on land they own near Priest Lake, Idaho. The U.S. Supreme Court heard their case in October – the second time the Sacketts have gone before the highest court in this long-running case.
The Sacketts bought their land in 2004, a $23,000 lot in a subdivision with already existing houses where they planned to build a modest three-bedroom family home. They obtained the necessary local permits, and began building. On May 3, 2007, three EPA officials from as far away as Boise, an eight-hour drive, arrived at the property as the result of a “tip” and demanded a stop to the construction. The agency alleged the property was a protected wetland under federal jurisdiction and threatened the Sacketts with fines of tens of thousands of dollars per day if they continued to develop the property. The government does not own this property nor has the EPA ever made this claim from former owners of the property.
The EPA’s compliance order claimed the Sacketts’ construction violated the Clean Water Act (CWA) because their property was a federally regulated “navigable water” over which the agency had legal authority. While the Sacketts disputed this claim, the EPA provided them with no proof of any violation and claimed that the Sacketts could not sue until they had applied for, and been denied, a permit from the EPA (an average of 788 days and $271,596 to obtain). The Sacketts, represented by the public interest Pacific Legal Foundation (PLF), sued the EPA to first establish that they could sue, and second that the agency has no authority over their property. (Aerial maps of the property can be found on PLF’s website)
When lower courts refused to hear their case, the Sacketts fought all the way to the Supreme Court, and in 2012 secured a unanimous decision confirming they indeed did have the right to challenge the EPA’s order in a court of law prior to a permit denial.
Since then, however, the Sacketts’ dispute has languished in lower courts without resolution. The only progress in the decade since has been the EPA’s removal of the compliance order in 2020. With the question of federal jurisdiction – and their homebuilding dreams – still in limbo, the Sacketts returned to the Supreme Court. This time, they’re asking the court to clarify the scope of the EPA’s regulatory powers under the CWA. At stake is whether the EPA can expand the definition of “navigable waters” – which limits its authority – to include any semi-soggy parcel of land in the country.
The Supreme Court had previously attempted to establish limits on the EPA’s regulatory power, but the agency has since issued guidance documents and created new rules in an attempt to sidestep the Court’s repeated efforts to rein in their unauthorized expansion of the CWA.
A win would vindicate the Sacketts’ right to finally build their home and the rights of all landowners to make reasonable use of their property without abuse by overzealous federal regulators. As for the EPA, the Sacketts’ victory would simply restore proper limits to its power over regulated waters. Oral arguments in Sackett v. Environmental Protection Agency took place Oct. 3, 2022, the first case of the Court’s 2022-23 term. A decision will be issued later this year.
I understand the interest of conservation groups in protecting wetlands and I support those efforts. Where this becomes problematic is when the government gives itself the right to “take” private property through arbitrary regulation. In this case, by changing the definition of “navigable waters” to include any damp piece of ground that may, at some time in the future, have some water wind up in the Ohio River or Lake Erie.
I cannot support the government’s position in this case.
There are other proven ways to protect sensitive properties for environmental use.
Ducks Unlimited, the Rocky Mountain Elk Foundation, Pheasants Forever, and even the State of Ohio, among others, are setting aside properties for such uses by obtaining legal title or conservation easements. The EPA’s limits under the CWA should end on the shores of bodies of water used in interstate commerce, that is, “navigable waters”.
Bill Bamler is an Ohio Outdoor News subscriber living in northeast Ohio.