Some years ago, when I was an attorney here at Pacific Legal Foundation in our Environmental Law section, I worked on a Supreme Court wetlands case called Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (SWANCC). In many ways, the Supreme Court’s decision in that case, and in two other cases, are precisely why the Sacketts are now in the Supreme Court challenging the EPA. Let me explain–and stay with me, because the twists and turns also reveal how the EPA has bootstrapped itself into a general federal land use agency.
SWANCC dealt with something called the “migratory bird rule.” What is the “migratory bird rule”? Good question.
The Clean Water Act specifically gives the EPA and Army Corps Clean Water Act jurisdiction over “navigable waters.” It further defines “navigable waters” as “waters of the United States.” For many years, the EPA and the Corps–and everyone else–understood this to mean that the EPA and Corps could regulate rivers that were actually, you know, navigable–that is, you could actually float a boat down them. But all that changed. Beginning in the 70’s, without any substantive change in the coverage of the Clean Water Act by Congress, the Corps and EPA promulgated a regulation which instantly more than doubled their regulatory jurisdiction by asserting that “waters of the United States” included wetlands. Understandably, the regulated community–now much, much larger–balked. And in a case called United States v. Riverside Bayview Homes, decided in 1985, the rule was challenged. And the Supreme Court upheld the EPA’s and Corps’ power to regulate wetlands . . . sort of.
If you read the decision in Riverside Bayview Homes, you will quickly see that it deals specifically with wetlands adjacent to a navigable river. Specifically, at the very beginning of the unanimous opinion authored by Justice White, the Court frames the issue thus:
This case presents the question whether the Clean Water Act (CWA), 33 U.S.C. § 1251 et seq., together with certain regulations promulgated under its authority by the Army Corps of Engineers, authorizes the Corps to require landowners to obtain permits from the Corps before discharging fill material into wetlands adjacent to navigable bodies of water and their tributaries. [Emphasis added.]
That is, the Court upheld the regulation because, as it cast the issue:
In determining the limits of its power to regulate discharges under the Act, the Corps must necessarily choose some point at which water ends and land begins. Our common experience tells us that this is often no easy task: the transition from water to solid ground is not necessarily or even typically an abrupt one. Rather, between open waters and dry land may lie shallows, marshes, mudflats, swamps, bogs-in short, a huge array of areas that are not wholly aquatic but nevertheless fall far short of being dry land. Where on this continuum to find the limit of “waters” is far from obvious.
Fair enough. If you live on a marsh adjacent to a river, the feds can regulate you. (This a good point to remind readers that, in the Sackett case, Priest Lake is 500 feet away from the Sackett’s lot. There are a row of houses between the lake and the lot–houses that needed no wetlands permit, because the area is not swampy in the least. There is also a raised roadbed for the county road that runs between the lake and the lot, and the lot is several feet higher than the level of the lake. The lake will never rise to flood the Sacketts’ land, or any of the lots in the neighborhood.)
So: what happened? Well, the EPA and Corps took Riverside Bayview and ran with it. Given a green light from the Court, they were not content just to regulate lands adjacent to navigable waters. In 1986, the Corps and EPA issued new regulations and that asserted they could regulate anything called “wetlands” under the Clean Water Act. But: how could the federal government regulate purely isolated wetlands that had no connection whatsoever to any navigable water? Well, EPA and the Corps basically threw out the Clean Water Act’s definitions and Riverside Bayview Homes, and decided that any “waters”, including any “wetlands” that could be said to remotely affected interstate commerce, could be regulated. How so? Because the Constitution grants Congress (not the EPA or Corps, mind you, but Congress) the power to regulate interstate commerce. So how does a puddle affect interstate commerce? Because people spend money and travel interstate to view and hunt migratory birds, which in turn may use these isolated wetlands. For the record: this is not a joke; this was the sum and substance of the government’s position, as expounded upon in SWANCC (refer to the opinion).
So then we arrive at SWANCC. In that case, the land in question encompassed 533 acres, and included both permanent and seasonal ponds up to several acres in size and up to several feet in depth. And get this (directly quoting from the opinion (linked above)):
The Corps initially concluded that it had no jurisdiction over the site because it contained no “wetlands,” or areas which support “vegetation typically adapted for life in saturated soil conditions,”
That’s right. Despite having permanent and seasonal ponds up to several feet in depth, the Corps conceded it had no Clean Water Act jurisdiction. That is, until the Corps found out that migratory birds had been seen at the site, and asserted jurisdiction on that basis. But then the Supreme Court threw out the migratory bird rule in a–get ready for it–narrow 5-4 decision. Result: no jurisdiction, no permit needed.
(Before going on: SWANCC was decided in 2001. The Sacketts received their compliance order in 2007. In six short years, the government went from conceding that permanent ponds up to several feet in depth on a 533 acre plot was not subject to Clean Water Act jurisdiction all the way to asserting jurisdiction over a half-acre lot with no standing water and an installed sewer hook-up. Which only goes to show . . . )
Even with a loss under its belt, the Supreme Court’s decision had little impact on the EPA’s views of its own authority. While it no longer invoked migratory birds as the basis for its jurisdiction over any stray puddle, the EPA simply broadened its ideas of what constituted a valid “connection” between a wetland and a “navigable waterway”. Thus, in 2006, in Rapanos v. United States (also argued by Pacific Legal Foundation), the Court issued a confusing and frustrating 4-1-4 decision in which the EPA “lost” its case against a landowner whom it had pursued for many years (including bringing criminal charges), when the landowner filled in “wetlands” that were 20 miles from the nearest navigable waterway. The connection? A series of ditches, culverts, creeks, and streams that eventually flowed into a navigable waterway.
From our perspective, as well as the perspective of lower courts and the regulated community, the Rapanos decision is troublesome for a number of reasons. The 4-1-4 decision meant that, essentially, there was no “majority” opinion by which you could explain, clearly, the Supreme Court’s “test” as to EPA’s jurisdiction over wetlands. Since Rapanos, courts have been left with trying to divine what a “plurality” of the Court actually agreed on. Add to this the fact that the EPA and Corps still have not issued any regulations defining its jurisdiction–only “guidance”, which has no force of actual law (which means it cannot be legally challenged on its face), but is treated by the EPA and Corps as though it is law.
Coupled with this problem of what connection is sufficient, of course, is the basic question: what, exactly, is a “wetland”, let alone a wetland subject to EPA or Corps jurisdiction? While the EPA does provide some definition what a wetland is, the definition is based not just on water, but on soil types, vegetation, character of land over time, etc. Thus, whether or not you have any wetlands on your property is not something you can determine without hiring a scientist–a qualified soils scientist/wetlands expert/hydrologist. And even then, you may not really know. That is because experts can, and often do, disagree on whether your property qualifies as “wetlands” or not. (In one case, the federal government estimates it spent between $2 million and $5 million on wetlands “experts”.) (Also: this is why all the environmentalist blather about how the Sacketts “violated the law” and now want to complain after-the-fact is sheer poppycock. No one knows if the Sacketts violated the law–not even the EPA, a fact which the government’s attorney conceded at oral argument.)
In short, the problem for landowners now is this: unless you live in a bog, swamp, or marsh, nobody can ever be really sure if the Corps or EPA will determine that their property may legally constitute a “wetland” subject to federal Clean Water Act jurisdiction. Which means that nobody using their property (that is, property that has not yet been developed) is ever really sure they are not running afoul of the law. And EPA likes it that way. Right now, it can assert federal permitting jurisdiction over any land it wants to.
This is why the Sacketts are in such a pickle, and why Sackett v. EPA is in front of the Court. Back when “navigable waterways” and “waters of the United States” were rivers and lakes that you could float a boat on, nobody would be too surprised to find the EPA on their doorstep for dumping something into the river; nobody really needed to question whether EPA had jurisdiction: it says so, right there in the Clean Water Act. (Incidentally, Senator Rand Paul has introduced a bill that would re-define the Clean Water Act to reassert its original meaning.) But thanks to a series of cases in which the Supreme Court has essentially approved the EPA’s power-grab over land use, we are now in a situation where the Sacketts, and people like them, have every reason to believe that the EPA just asserts jurisdiction whenever it feels like it just by claiming something is wetlands. When the question of whether or not you are subject to the Clean Water Act depends upon the caprice of a federal EPA bureaucrat, you’ve got a constitutional problem. You need some sort of check on runaway government power. You need judicial review.
The EPA has consistently argued that the Sacketts are not entitled to judicial review at this stage; instead, they say, the Sacketts should simply apply for a permit and, if it gets denied, then they will have ample opportunity to challenge federal jurisdiction–they’ll “get their day in court,” as it were.
Aside from the absurdity, as members of the Supreme Court noted at oral argument, of applying for a permit you don’t believe you need, as well as the cost of obtaining such a permit, consider this: in SWANCC, the Corps made its jurisdictional determination in 1987. And even though SWANCC, like the Sacketts, believed that the Corps’ assertion of jurisdiction was wrong, they took the course of action offered to them: they applied for a permit, and waited until it was denied. Despite multiple offers to mitigate, SWANCC was finally denied a permit in 1993–yes, that’s right: 6 years later. And then it took SWANCC another 8 years, and millions of unrecoverable dollars, to get the Supreme Court to resolve the issue in their favor.
When you are a multi-city landfill project, maybe you can afford to wait 14 years to get your day in court. Maybe you can afford the millions of dollars in experts, attorneys, scientists, and other fees that you would need to challenge the government’s Clean Water Act jurisdiction. But when you are Mike and Chantell Sackett, just trying to build a life and a house, you can’t–and neither can other small landowners. And remember: the Sackett case will not even decide if the Sacketts get to build a hosue, only if they get to go to court!
Make no mistake: the EPA and Corps know how to avoid going into Court and having their power challenged. In one case, a former government regulator testified that the EPA and Corps simply bled landowners in a war of attrition: permit applicants are constantly asked for new studies, new fees, new documents, updated paperwork. The fact is, large numbers of permit applicants simply drop out and give up. In one study, the EPA and Corps reach final decisions in less than half of the permit applications that were initiated–permit applicants simply did not have the will to keep slogging through the bureaucratic process, with no promise of a positive result after all the wrangling. At one point, they know they are simply throwing good money after bad.
In contrast, the EPA has an endless supply of bureaucrats and plenty of federal taxpayer money to squander.
So: why are the Sacketts where they are? Because the courts have told the EPA that they cannot and will not step in to stop them. What is more worrisome, few courts show any desire to stop them. A win in the Sackett case will make one small inroad into the nightmare federal land use regime created by EPA–and by courts that have permitted the EPA to bootstrap itself into a federal land use agency.
Sackett v. EPA is but one of the cases in which Pacific Legal Foundation has been waging a war on behalf of property owners and freedom-loving Americans against the EPA with respect to the Clean Water Act, and, given EPA’s recalcitrance and appetite for power, we fully expect the battle to continue far into the future.