For 16 years, a family wanted to build a home on an empty lot near a lake in
Idaho
. When they began to move “dirt and rocks” to grade their property for construction, the
Environmental Protection Agency (EPA)
forced them to stop and ordered them to pay $40,000 a day until they put the dirt and rocks back where they had found them. The house was never built.
This Thursday, the
Supreme Court
ruled that the Idaho family, the Sacketts, had been wrongly obstructed and could go ahead with their house. The Supreme Court’s decision in
Sackett v. EPA
will liberate a landmass the size of California for development.
The 1972 Clean Water Act (CWA) gives the EPA authority to regulate the discharge of “pollutants” into the “waters of the United States.” While the definition of pollutants is broad, encompassing everything from “chemical wastes” to “rock,” “sand,” and “dirt,” it is at least clear what pollutant means.
The term “waters of the United States” has been vaguer. At first, the EPA used a broadly agreed narrow definition that included only waters that “could affect interstate or foreign commerce” and the “wetlands adjacent to those waters.” But through new regulations, it steadily expanded that definition, giving itself more and more control over more land.
In 1986, the agency issued its “Migratory Bird Rule” which asserted EPA CWA jurisdiction over any water anywhere that could “or would be used as a habitat” by migratory birds. The EPA admitted in court that this definition of “waters of the United States” granted them jurisdiction over every swimming pool, puddle, and ditch in the country. The Supreme Court rejected this definition in 2001, but the EPA then issued new regulations that, according to a 2006 Supreme Court decision, gave it jurisdiction over “virtually any parcel of land containing a channel or conduit through which rainwater or drainage may occasionally or intermittently flow.”
That 2006 Supreme Court case struck down the EPA’s definition of “waters,” but it failed to find consensus on a new definition. The EPA then borrowed language from one concurring opinion in that case, Justice Anthony Kennedy’s “significant nexus” test, and used it to assert control over pretty much any drop of water anywhere in the country.
Thursday’s Sackett v. EPA unanimously rejected the current “significant nexus” test. But only five justices could agree on a working definition. Dissenters failed to offer a working definition. But now, property owners and developers everywhere have more confidence that they may build without EPA threats of fines and imprisonment.
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Despite what you see in the liberal press, Sackett v. EPA did not “gut” the Clean Water Act. Factories, power plants, and homes that abut a body of water are still subject to EPA jurisdiction. So is a property that abuts wetlands directly connected to any standing body of water. But homeowners like the Sacketts, whose property is separated from wetlands by a 30-foot road that touches a creek that feeds into a lake, no longer have to worry.
This country used to be able to build things. But starting in the 1970s, Congress and the federal government have made it increasingly difficult for anyone to jump through all the regulatory hoops necessary to get projects started. More needs to be done, especially in Congress, but last Thursday, a unanimous Supreme Court acknowledged the EPA had gone too far, and that is a good start.
