Robert White worked for many years to build a highly successful commercial seafood business in North Carolina. While he earned a good livelihood, he invested much of his earnings in coastal property as a way to ensure financial security for his children.
But now Robert and his family face financial ruin due to a remorseless power grab by two federal agencies, even after they were unanimously rebuked by the Supreme Court.
Some of Robert’s land is in a low-lying region along Big Flatty Creek and the Pasquotank River and is prone to flooding. Robert set out to make the necessary improvements to minimize flooding risks and to facilitate productive uses, including agriculture and mineral extraction.
Robert obtained and followed all relevant North Carolina state permits, yet he soon found himself in the crosshairs of both the Environmental Protection Agency and Army Corps of Engineers. The agencies claimed that under their “navigable waters” rules, Robert’s flood control work took place in wetlands purportedly adjacent to federally regulated waters, so he also needed a Clean Water Act permit.
Forced to stop all productive use of his land, Robert faces crushing civil enforcement action.
In 2023, however, after the agencies initially acted against him, the Supreme Court decided Sackett v. EPA. The Court’s decision requires that wetlands must be indistinguishable from navigable waters to be regulated. Land such as Robert’s, which does not bear this connection to the two waterways—cannot be subject to federal regulation under the Clean Water Act.
The Supreme Court’s decision in Sackett—after 20 years of litigation—constituted an unequivocal rejection of the agencies’ historical approach to regulating private land. It required a dramatic change in approach by the agencies. Yet none has been forthcoming.
Instead, and in response to Sackett II, the EPA issued a “conforming rule” that it claimed abided by the requirements of the ruling. But the amended rule’s “adjacent wetlands” provisions do not conform with Sackett II’s interpretation of the CWA. Instead, they continue to assert broad federal authority over enormous areas of private land, in every corner of the country.
The EPA and Army Corps are ignoring the Supreme Court and continuing to bring cases against Americans without the lawful authority to do so.
Represented at no charge by Pacific Legal Foundation, Robert is challenging the agencies’ illegal provisions in federal court to restore his own right to make use of his own land, and to ensure both agencies’ compliance and courts’ proper application of Sackett II.
PLF’s cases United States v. Melton E. “Val” Valentine, Jr., et al. and Ward v. US Army Corps of Engineers also seek to enforce the proper application of Sackett II.
What’s At Stake?
- Federal agencies cannot willfully ignore a Supreme Court decision or assume enforcement powers they do not have. In Sackett II, the Supreme Court dramatically limited the federal government’s power to regulate private property under the Clean Water Act.
