Discourse: Muddying the Waters
Robert White built a thriving seafood business in North Carolina. With his hard-earned profits, he bought some coastal property as an investment he could one day leave to his children. Eager to improve the property, Robert set out to make the land more productive by reducing its flood risk. But the work ground to a halt and Robert’s plans were put on hold when he found himself in the crosshairs of two powerful federal agencies.
Despite securing all the necessary permits from the state, Robert was blindsided by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE). They claimed that the flood-prone area on Robert’s property was a wetland “adjacent” to federally protected “navigable waters.” According to the way these agencies define these terms, this made Robert’s land subject to the Clean Water Act, with its stringent permitting process and its steep draconian penalties. Forced to halt all work on his land, Robert faces a lawsuit from the government in a civil enforcement action.
And Robert is not the only one: New research shows just how difficult it is for private landowners to determine whether their land is federally regulated under the Clean Water Act. That’s because the definition of “navigable waters” keeps changing.
The aim of the 1972 Clean Water Act (CWA)—a revised and expanded version of an earlier act addressing water pollution—was to restore and protect the “chemical, physical, and biological integrity” of the nation’s waters. It empowered the EPA and the USACE to administer a permitting scheme to regulate “discharges” into “navigable waters.”
But what counts as navigable? The act doesn’t say, defining “navigable waters” only as “waters of the United States” and leaving the interpretation up to the agencies enforcing the act. Over the years, the agencies have steadily broadened the meaning of “navigable” and have thus claimed authority and control over an increasing amount of private property. Under different administrations, the agencies have instituted at least six regulatory regimes, often overlapping or conflicting, leaving landowners in a confusing legal limbo.
Take the case of Michael and Chantell Sackett, a couple who in 2004 purchased land in a residential subdivision in Idaho with plans to build a home. In 2007, shortly after they began their project, the EPA accused the Sacketts of discharging “pollutants” into “wetlands” classified as “waters” covered by the CWA. The agency ordered them to stop work immediately, threatening them with fines exceeding tens of thousands of dollars per day. All of this was despite the fact that the Sacketts’ property was separated from any water by a 30-foot road.
In 2023, the Supreme Court decided that the Sacketts’ land is not subject to the CWA. In Sackett v. EPA, the court found that the CWA’s regulation of “waters” only extends to relatively permanent, continuously flowing bodies of water. For wetlands to be regulated, they must have a continuous surface water connection to, and be indistinguishably part of, such a body of water.
As it stands, the burden of determining whether the CWA applies to a particular property falls on the landowner. Owners wanting to develop their land—even, in some cases, just to conduct routine maintenance of roads and ditches—face significant consequences if they misjudge. A wrong call could result in criminal charges or ruinous fines of over $66,000 per day for each violation. Meanwhile, the CWA permitting process is daunting, entailing significant delays (potentially more than a decade) and costs. Researchers estimated the average cost of obtaining an individual permit at over $470,000 in today’s dollars.
The Supreme Court has provided a clear definition of which waters are regulated under the Clean Water Act and which are not. Yet as Robert’s case demonstrates, the EPA and the Army Corps remain defiant. Such conduct is, unfortunately, not isolated to these agencies. As the modern administrative state has grown, so too has the tendency of federal agencies to ignore precedent set by the Supreme Court, in favor of furthering their own objectives. For example, despite a unanimous 2018 loss at the Supreme Court regarding the authority of the United States Fish and Wildlife Service to designate critical habitat under the Endangered Species Act, that agency has continued to aggressively impose such designations. Likewise, in a 2023 decision the Supreme Court held that federal courts can hear certain constitutional objections to administrative agency tribunals, before individuals are forced to go before them. Yet following that decision, many agencies have resisted requests to pause administrative proceedings while their constitutionality is tested, in favor of forcing litigants to fight a resource-draining battle on two fronts.
The time has come for the EPA and the USACE to accept the rule of law and respect the clear guidance given in the Supreme Court’s rulings. Following the law will ensure that landowners can manage their land without fear of jail or bankruptcy, and that people like Robert can pursue their own dreams of life, liberty and happiness without interference from powerful government agencies.
This op-ed originally appeared in Discourse on December 3, 2024.
