We all have a slightly distorted idea about who we are and how other people see us. We tell stories about ourselves, rewriting history in our heads to fit narrative myths in which we’re the main character—the hero.
This is the origin story the Environmental Protection Agency tells about itself: On June 22, 1969, Cleveland’s Cuyahoga River burst into flames. TIME magazine put a stunning photo of the burning river on its front cover emblazoned with the headline, “An Ecological Crisis.” America had a serious pollution problem, and the public was clamoring for a solution—a savior. A year later in 1970, President Richard Nixon signed the EPA into being. Then in 1972, the EPA’s story goes, Congress gifted the young agency with sweeping powers to eradicate water pollution in America. And everything’s been better since.
Like all personal myths, of course, that story is only partially true.
Technically, it was an oil slick on the Cuyahoga River that caught fire—and it was put out 30 minutes later, before reporters or photographers could document it. The river had caught fire dozens of times in previous years. Few people even noticed the 1969 fire while it burned. But the right people knew how to make hay with the biblical image of water bursting into flames, and it became a TIME cover story. But TIME used an image from a previous 1952 Cuyahoga fire for its cover. The state of the current river was not quite the urgent, Old Testament crisis the magazine wanted to depict.
In truth, the creation of the EPA was the culmination of nearly a decade of growing environmental awareness and activism on top of a decades-long expansion of the role of the federal government in nearly every aspect of American society.
Throughout the 1960s, the ongoing Cold War and the very real risk of nuclear devastation weighed heavily on the entire country. Rachel Carson’s alarming 1962 book, Silent Spring, drew the public’s attention to the widespread use of harmful pesticides. Ralph Nader’s public interest activism marked a shift in liberalism away from New Deal-era trust in government toward a more cynical, watchdog attitude. The famous “Earthrise” photograph taken from the Apollo 8 in 1968 became an immediate symbol of the frailty of life on Earth.
Richard Nixon’s creation of the EPA was partly the end result of this environmentalist shift. In his State of the Union address that year, Nixon said, “Clean air, clean water, open spaces—these should once again be the birthright of every American.” It was a grand promise—and it would spark a grandiose 50-year mission.
The Clean Water Act of 1972 was “implausibly ambitious” from the get-go, according to scholars David Keiser and Joseph Shapiro.
The CWA regulates the discharges of “pollutants” from “point sources” to “navigable waters,” which it defines as “the waters of the United States, including the territorial seas.” The word “pollutants” is broadly defined to include soil, sand, and rocks alongside the industrial and chemical waste that most people imagine. Anyone responsible for discharging these “pollutants” into “navigable waters” must get a permit from either the EPA or the Army Corps of Engineers, depending on the type of discharge involved.
Nixon initially vetoed the CWA. He was a “pro-environment” president—he created the EPA, after all—but he believed the Clean Water Act’s costs would be “unconscionable” and “budget-wrecking.” In his veto message, he said he hoped to solve the country’s pollution problem in “a way that does not ignore other very real threats to the quality of life[.]”
But Congress overrode his veto, and the CWA became law.
In the 50 years since the CWA was passed, the EPA has used it to assume authority over ever-greater areas of the United States.
While the CWA defines territorial seas, it does not define “the waters of the United States.” That phrase predates the CWA: It was used in the 1899 Rivers and Harbors Act, which prohibits obstructions “to the navigable capacity of any of the waters of the United States” and requires permits from the Army Corps of Engineers to build structures like piers, wharfs, and transmission lines in those waters.
Over the years, the EPA—convinced of the righteousness of its mission and the infallibility of its own expertise—has interpreted the phrase “waters of the United States” to extend its regulatory domain over not just waterways, but also inland wetlands.
The EPA and the Army Corps of Engineers have also interpreted their authority so broadly that they claim the right to regulate activities that might merely move dirt (in government-speak, “filled material”) into or on waters or wetlands. Moving dirt is, of course, a far cry from discharging pollutants into water. And yet, in an interview with PLF, legal scholar Jonathan Adler confirms the government’s position:
Government officials were saying that if there was a baseball game on a jurisdictional wetland and the guy walks with his cleats and bangs the dirt off of his cleats, that would be “redeposited filled material.” There’s a Federal Register notice in which EPA says the same thing about dirt being picked up and redeposited by the tread of a bicycle biking across the wetland. The claim that this is just about “regulating development” and “regulating commercial activity” is not true. The Act doesn’t limit anything that way, the “Waters of the United States” definition does not limit anything that way. And the agencies, in their own understanding of their own authority, have never limited it in that way.
If these sound like alarmist hypotheticals, consider that the government sued our client Jack LaPant simply for merely plowing his own farm. Or consider the case of Gaston Roberge, who owned a commercial lot and allowed the town to dump clean fill there. When he decided to sell the lot to a developer, the Army Corps of Engineers charged him with illegally filling a wetland. The developer, of course, immediately backed out. Environmental policy scholar R.J. Smith explains what happened next:
After six years and tens of thousands of dollars in legal fees fighting to get a permit, it turned out he didn’t need the permit after all, as his lot was finally designated as not a wetland. He then sued for a temporary taking of his property. During the proceedings, a Corps memo was discovered, saying, “Roberge would be a good one to squash and set an example.”
This is the attitude with which the Army Corps of Engineers and the EPA enforced the Clean Water Act. They wanted to make examples of people and demonstrate their own power. Roberge’s story is just one of many. Pacific Legal Foundation has defended countless people who found themselves mired in a “navigable waters” quandary.
For example: Richard Schok owns a successful pipe-fabricating business in Alaska. He purchased a property to expand his company, only to learn that, under the CWA, the new property was a “wetland.” But of the 350 acres on Schok’s property that the government called a “wetland,” about 200 of the acres were permafrost. Land that is frozen all year was now being deemed a “navigable water.”
PLF’s late client Joe Robertson was another CWA victim. A Navy veteran then in his mid-70s, Robertson was sentenced to 18 months in prison for allegedly violating the CWA. Robertson’s land in rural Montana was prone to forest fires. He ran a firefighting support-truck business. He dug small ponds in and around a one-foot-wide, one-foot-deep channel near his home to provide more water for fighting forest fires. The channel is 40 miles from any river on which a boat could float, but the government claimed Robertson was discharging a pollutant—soil—into navigable waters. He was hit with a $130,000 fine. Tragically, he didn’t live to see his vindication. PLF won the case and had the government refund his widow the thousands Joe had already paid in fines.
Another PLF client, Andy Johnson, was accused of violating the CWA for building a stock pond on his own property after securing the needed state permit. The pond provided reliable access to water for his small herd. Johnson had received permission from the local State Engineers Department to build the stock pond, and he’d done it in an environmentally friendly way. The water in it was crystal-clear. But the EPA demanded that Johnson remove the pond anyway, and threatened him with fines of $37,500 per day. All this, even though stock ponds are expressly exempt from the CWA. The EPA only dropped their threats a couple years later, when PLF helped Johnson file a lawsuit. Johnson agreed to plant willows around the pond but didn’t have to pay the agency a dime.
But what the EPA did to Mike and Chantell Sackett is especially outrageous: The agency has trapped the couple in legal purgatory since 2007.
It all started with the Sacketts’ purchase of a vacant lot in a subdivision near Priest Lake, Idaho. The Sacketts obtained local permits to build a home on their lot.
After construction began, the EPA ordered it halted. The agency then sent a compliance order declaring that the Sacketts’ lot contained wetlands that, because of their proximity to the lake, qualified as navigable waters—giving the EPA control over the Sacketts’ property. The couple were told they needed a federal permit to fill in the “wetlands” on their property (but in a voicemail to Chantell Sackett, EPA personnel said they’d never grant a permit to build there—putting the couple in a no-win situation).
To anyone who lacks the EPA’s regulatory imagination, of course, the lot doesn’t remotely resemble wetlands; it looks like what it is—a residential lot suitable for building a family home. The EPA itself acknowledges that no water at all, whether surface or subsurface, flows from the Sacketts’ lot to Priest Lake.
Not only did the EPA halt construction of the Sacketts’ home, but it also demanded expensive restoration work and a three-year monitoring program, during which the property could not be touched. The agency threatened the Sacketts with tens of thousands of dollars in fines if they didn’t obey the order. The Sacketts also were told they didn’t have a right to take the EPA to court: For decades, the EPA argued that no one could challenge their compliance orders in court—a stroke of particular arrogance. Unfortunately, lower federal courts usually backed up the EPA.
PLF disagreed with this dystopian stretch of government authority. We took the Sacketts’ case to the Supreme Court to establish that the couple had a right to appeal the compliance order. Justice Scalia delivered the unanimous opinion of the Court in March 2012. After seven years of legal battles, the Sacketts finally won the right to sue the EPA.
This October, PLF is bringing the Sacketts’ case back to the Supreme Court to resolve the bigger question: Does the Sacketts’ property really count as navigable waters, which would give the EPA power over this soggy residential lot? If so, how many thousands of acres across America will the EPA claim control over next?
The Sacketts’ arduous year fight with the EPA shows what happens when a federal agency aggrandizes itself.
To paint a clear picture of the EPA’s flimsy justification for its attitude toward the Sacketts: Along the north end of the Sacketts’ lot is a paved road; on the other side of the road, there is a man-made ditch, on the other side of which are wetlands. Running along the south end of the Sacketts’ lot is another road, across which sits a row of houses that front Priest Lake. There is no surface water connection between the ditch and the sacketts’ lot, or between the Sacketts’ lot and the lake. But because the ditch (on the other side of a paved road!) runs into a creek a few thousand feet west of the lot, and the creek flows into Priest Lake, the EPA claims that the Sacketts’ lot has a significant connection to the lake.
As Larry Salzman, PLF’s head of litigation, puts it, “What are we protecting at that point? There’s actually no world in which the EPA is protecting that lake from the Sacketts’ lot. They’re just asserting control over the surrounding property because they would like less of it to be developed around the lake.”
The EPA has assumed broad powers over America’s waters and skies. The agency says its mission is “to protect human health and the environment,” in part by ensuring that “Americans have clean air, land, and water.”
But harassing homeowners like the Sacketts does not make America’s water cleaner—and it’s a far cry from what Congress intended when it passed the Clean Water Act 50 years ago.
The EPA will be proudly celebrating the 50th anniversary of the Clean Water Act this October, right around the same time we’ll be arguing the Sacketts’ case at the Supreme Court.
This confluence of events should force the agency to ask itself some hard questions about costs and benefits—and about whether 50 years of exerting control over American lives and property has been long enough.
This article originally appeared in the fall 2022 edition of Sword&Scales.