Federal government continues to abuse Clean Water Act to micromanage property owners

Ron Foster grew up with eight brothers on a Kentucky farm, where he learned the ins and outs of land use, water drainage, and environmental stewardship. He went on to earn a mechanical engineering degree and built a thriving business in property development and construction supply, specializing in drainage and erosion control. 

But his lifetime of expertise couldn’t shield him from Environmental Protection Agency overreach and crushing penalties in Clean Water Act enforcement—not even after the U.S. Supreme Court drastically limited federal control of private property.  

In 2009, Ron bought 90 acres of commercially zoned land near Parkersburg, West Virginia, in a bankruptcy sale. He saw it as both a retirement investment and a way to leave something meaningful for his children. The previous owner had faced alleged Clean Water Act violations, and as part of the purchase Ron agreed to set aside tens of thousands of dollars to fix the alleged environmental issues left by the previous owner and believed that settled the issue. Ron went on to pour hundreds of thousands more into preparing the land for development. 

The following year, EPA inspectors walked onto his land (without permission) and declared they found “waters of the United States” that fell under CWA regulation. The agency accused him of filling in protected “streams” without a federal permit and slapped him with a compliance order.  

The EPA’s claim, however, strains all credulity. Ron’s property contains four natural dips that intermittently channel rain or snowmelt into a hayfield where water trickles disappear. These occasional rivulets never last more than a few months and at no point do they connect to any recognizable body of water; the nearest traditionally navigable waterway is more than three miles away. 

Nearly 15 years of legal battles ensued. Ron spent hundreds of thousands of dollars to defend his investment and property rights only to have a federal court side with the EPA—concluding that the four divots were “waters of the United States” and therefore regulated under the Clean Water Act—and order him to pay more than $800,000 in civil penalties and mitigation costs. Meanwhile, the litigation has severely impacted his land’s value and prevented Ron from developing or selling it. 

Then in 2023, the Supreme Court decided Sackett v. EPA (Sackett II). The ruling required that the CWA extends only to “relatively permanent, standing or continuously flowing bodies of water ‘forming geographic[al] features,‘” or what everyday folks would call streams, oceans, rivers, and lakes—without the need to hire an expert to identify whether they are subject to the Act‘s harsh civil and criminal sanctions. 

The Supreme Court’s decision in Sackett II was an unequivocal rejection of the agencies’ previous approach to regulating private land. It demanded a dramatic shift in how agencies exercise their authority and how courts adjudicate disputes over agency actions to return the Clean Water Act to the scope Congress intended when it passed the law. 

But when the district court revisited Ron’s case after Sackett II, it didn’t rigorously apply the Supreme Court’s clear directive. Curiously, the court said that only one of the four divots counted under the Clean Water Act but left in place almost all of the civil penalties and mitigation costs from its previous order.  

The decision leaves Ron on the hook for steep penalties, while allowing agencies’ continued Clean Water Act misuse to assert broad authority over any occasionally soggy spot of earth. 

Represented free of charge by Pacific Legal Foundation, Ron is asking the Fourth Circuit Court of Appeals to reverse the district court’s failure to apply the correct legal standard mandated by Sackett II. Victory would restore Ron’s right to make use of his own land, while ensuring agencies’ compliance with, and courts’ proper application of, the language and intentions of the Clean Water Act. 

Ron’s battle is among a growing slate of PLF cases seeking to ensure Sackett II has the teeth intended by the Supreme Court to keep the executive branch of government where it belongs: within the Constitution’s separation of powers.