How PLF’s latest victory against CWA abuse can help property owners like you

In 2023, rural Iowa landowner Dan Ward found himself at odds with the Army Corps of Engineers over a construction project deemed to be in violation of the Clean Water Act.

Nearing retirement, Dan plans to spend the next chapter of his life on his property in southern Iowa. His first step was building a home. Then he moved on to other projects that would make the place ideal for him and his grandchildren to enjoy. One of these projects was the construction of a nine-acre recreational pond.

Knowing that constructing the pond would involve certain permits, he hired a consultant and asked the Army Corps of Engineers to make sure his plan was compliant with the CWA before he got to work. The area in question contained a small, dry groove. Anyone who saw it would never guess that it would be considered a “navigable water” by the Army Corps, but that is exactly what happened.

The Army Corps came to inspect the land a day after it had rained. What was usually a dry groove now contained several isolated standing pools of water that resembled puddles. This led to the Army Corps designating the land as a “seasonal river”—and thus, a navigable water. As a navigable water, the land would be protected and heavily regulated under the CWA, which meant that Dan would have to overcome some major and expensive hurdles before he could build. For the project to proceed, he would have to pay upward of $100,000 in mitigation credits and other fees in order to get a CWA “dredge and fill” permit.

The costs were outrageous and completely infeasible for Dan.

Dry groove on Dan’s property.

It’s not just Dan

Dan’s debacle with the Army Corps happened at a particularly interesting time, on the heels of a Supreme Court ruling in PLF’s case Sackett v. EPA. In Sackett, the Court was tasked with answering the question of whether the EPA had overstepped its bounds when it threatened Chantell and Mike Sackett with tens of thousands of dollars in fines per day for constructing a home on what the agency alleged was a protected wetland.

Like Dan’s property, the soggy parcel on the Sacketts’ rural Idaho land was not wet year-round but rather collected water during rainfall. Even so, the EPA ordered the Sacketts to stop construction and restore the land to its original state or else face exorbitant fines and even criminal charges. With the help of PLF, the Sacketts took the EPA to court and eventually brought their case to the Supreme Court twice: once to fight for the right to even challenge the EPA’s decision and again to challenge the EPA’s broad interpretation of “wetland” under the Clean Water Act. The couple won both cases.

In April 2023, the Supreme Court ruled that the EPA had overstepped its regulatory authority. The Court’s decision reined in the EPA’s authority to broadly interpret and enforce the Clean Water Act. Despite the Court’s landmark decision, mere months later, Dan Ward became yet another target of CWA overreach.

(The Clean Water Act is enforced by both the EPA and the Army Corps, which is how Dan found himself dealing with the Army Corps and not the EPA.)

With the Sackett ruling, PLF had another bow in its quiver to help challenge the Army Corps assessment of Dan’s land. PLF helped Dan file an appeal, pushing the matter up to a higher division of the Army Corps for review.

Normally, one might not see a lot of hope in asking an agency to question its own findings, but given the Sackett ruling, the stakes were higher for the Army Corps to get this right. The higher office reviewed the information and found that the initial assessment lacked adequate evidence to warrant the “approved jurisdictional determination.”

Asking an agency to question their own conclusions doesn’t always yield the best results. But in this instance, the higher office of the Army Corps correctly cast doubt on the Army Corps’ original designation of Dan’s land.  The matter has been sent back to the original office, who must now show more evidence that this dry groove is indeed regulable.

While it’s absolutely possible that the Army Corps will double down and attempt to gather more information to justify the original decision, the agency could very well drop the matter entirely. But even if they don’t, Dan’s fight isn’t over. The next step would be to take the matter to federal court.

This initial step is a huge win not only for Dan, but for the many others who have and will find themselves targets of the Army Corps or the EPA wrongly earmarking their land on CWA claims. And it could happen to anyone.

What to do if it happens to you?

As big as the win in Sackett was, the government will almost always find a way to skirt the Court’s decision when it is not in their favor. And in the wake of Sackett, the EPA and Army Corps have been especially guilty of attempting to circumvent the law by going after other property owners. This is why it is important to know what to do if it happens to you.

For those who have the unpleasant experience of being subjected to the CWA, most probably don’t know that they can fight back. And even if they do, they might not know where to begin. Or worse, they may get so discouraged by the magnitude of such a feat, they’d rather cede to the agencies’ claim of authority than deal with the headache.

The most important thing to do should this happen to you is to challenge a wrong decision—always. It’s intimidating to question the authority of the federal government, and regulatory agencies are banking on you feeling this way. If you don’t challenge the agency in question, it can get away with continuing the pre-Sackett enforcement of the CWA, hoping that the matter will never be brought to light in court.

Your first call to action will be to start with an administrative appeal. If, as in Dan’s case, a higher division agrees that there was not enough evidence provided, the agency must reinvestigate. If the appeal does not end in your favor, or if the second investigation results in a similar assessment, you’re not out of options.

Your next step is to take your case to federal court. Thanks to Sackett, you will be armed with a precedent to help you fight back.

If all this seems too daunting to take on by yourself, Pacific Legal Foundation is here to help. PLF attorneys have the experience needed to challenge unjust regulatory enforcement of the CWA. And if you have any doubts, just look at our track record.