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Sackett decision a victory, but Clean Water Act still a mess

Sackett decision a victory, but Clean Water Act still a mess

Wayne Hoffman
March 23, 2012

It’s been a long wait for Mike and Chantelle Sackett, but they finally beat back the federal government.  In 2005, the couple from Priest Lake bought less than an acre of property intending to build a three-bedroom family home. When they began construction, the U.S. Environmental Protection Agency served the couple with a compliance order claiming that their property “contains wetlands” and that their work on the site constituted “the discharge of pollutants from a point source” under the terms of the Clean Water Act.  The EPA directed the Sacketts to stop construction and “restore” the wetlands to its original state. Failure to comply with the EPA’s demands would result in fines of up to $75,000 a day.

The Sacketts, not believing their property to be wetlands nor subject to federal law, asked the EPA for a hearing on the matter. The EPA said no. The couple brought their case to the district court, which also denied a hearing, a decision backed up by the U.S.9th Circuit Court of Appeals.  But the U.S. Supreme Court agreed to hear the case, and days ago, ruled that the couple is entitled to due process.

The ruling itself is a joy to read, but none more so than the concurring opinion of Justice Samuel Alito, who wrote, “The reach of the Clean Water Act is notoriously unclear. Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the Act, and according to the Federal Government, if property owners begin to construct a home on a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency’s mercy.” The landowner is assessed fines beyond a person’s wildest imagination. “If the owners want their day in court to show that their lot does not include covered wetlands, well, as a practical matter, that is just too bad. … In a nation that values due process, not to mention private property, such treatment is unthinkable,” wrote Alito.

Alito goes on to note that the Sacketts are now being afforded “a modest measure of relief” through the Supreme Court’s unanimous ruling. “But the combination of the uncertain reach of the Clean Water Act and the draconian penalties imposed for the sort of violations alleged in this case still leaves most property owners with little practical alternative but to dance to the EPA’s tune,” Alito wrote. “Real relief requires Congress to do what it should have done in the first place: provide a reasonably clear rule regarding the reach of the Clean Water Act.”

The case and Alito’s remarks remind me of Lynn Moses, an Idahoan who became a convicted felon after he performed flood control work on a creek in order to protect lives and property. Lynn and I visited in 2009, just as he was starting probation for this “crime.” In the 1980s, Teton County authorized Moses to perform work on Teton Creek, which ran intermittently. A county commissioner recalled checking with the Army Corps of Engineers beforehand, with the federal agency determining it had no jurisdiction over the creek. But over the years, old bureaucrats gave way to new bureaucrats, and the new bureaucrats decided that Teton Creek was, indeed, a “navigable water” under the Clean Water Act. In 2005, the EPA decided to prosecute, and a jury convicted Moses of Clean Water Act violations. He was sentenced to 18 months in prison, a year of probation and fined $9,000.

Alito is exactly right. The Sacketts won this round. It took them five years to get a victory. Their case is an undeniable victory for private property rights. But until Congress fixes the recklessly ambiguous Clean Water Act, the EPA still has the power, the patience and persistence to make life a living hell for other property owners   throughout this nation.

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