The anniversary of Sackett v. EPA and continued defiance

One year ago, the Supreme Court unanimously agreed to restore proper limits to the Environment Protection Agency’s (EPA) authority to broadly interpret and enforce the Clean Water Act (CWA). For decades, the EPA, along with the Army Corps of Engineers, had taken it upon themselves to expand the definition of “navigable waters” to include semi-soggy parcels of residential land.

As a result, many individual property owners fell victim to overzealous and unconstitutional regulations, like Pacific Legal Foundation clients Mike and Chantell Sackett.

The Sacketts bought property in Priest Lake, Idaho, hoping to build their dream home. Shortly after construction began, the EPA demanded that they stop building. The agency had used its broad interpretation of the Clean Water Act to go after the pair: It threatened the Sacketts with thousands of dollars of fines per day if they did not halt construction and return the land to its original state.

After 15 years of legal battles, including two trips to the Supreme Court, the couple was finally vindicated last May when the Justices unanimously agreed that the EPA’s enforcement of the Clean Water Act had been too broad in scope.

While we celebrate the anniversary of this legal victory, both the EPA and the Army Corps are hard at work, doing their best to circumvent the Court’s decision and continue doing business as usual—Constitution be damned. But PLF isn’t going to let them get away with it.

Circumventing the law

In March, PLF filed suit against the EPA on behalf of Robert White for blatantly ignoring the Court’s ruling in Sackett.

Robert was making necessary improvements to prevent flooding on his flood-prone coastal property in North Carolina. The agencies claimed that under their “navigable waters” rules, Robert’s flood control work took place in wetlands purportedly adjacent to federally regulated waters; therefore, he also needed a Clean Water Act permit.

But the rule doesn’t comply with what the Court said in Sackett. There are no wetlands on Mr. White’s property that meet the Supreme Court’s definition. Yet the EPA and the Corps have kept up their actions against him and others.

Likewise, Dan Ward—a landowner in Iowa—is appealing a U.S. Army Corps of Engineers’ Clean Water Act designation that violates the Sackett decision.

Dan wanted to build a pond at his rural homestead in Iowa that would cross an unnamed tributary on his land—really a narrow and ordinarily dry depression on the surface of the ground—which is many times removed from the nearest traditionally navigable water. Making sure he did everything he was supposed to, Dan hired an environmental consultant to ensure regulatory compliance.

The agency later claimed authority over this depression because a Corps official spotted some puddles and a tiny trickle in it one day in April 2023—after rainfall.

According to the agency’s logic, and despite substantial evidence showing the tributary cannot collect enough water to qualify for federal regulation, Dan now needs a costly federal permit to finish his pond—a requirement incompatible with the Sackett ruling. Pacific Legal Foundation is helping him fight back.

And this PLF case also comes out of North Carolina. In 2016,“Val” Valentine began buying 1,700 acres of rough timberland for his family’s new logging business. The land crisscrossed with old, dilapidated logging roads. Val, along with his son, was prepared to tackle the hard work necessary to get their business off the ground.

The property lies along the Roanoke River and a smaller stream called Devils Gut in eastern North Carolina. Their business plan was two-fold: cultivating a complex forest ecosystem for healthy hardwood timber in the long term, financially supported in the short term by ecotourism, hunting, and fishing on the land.

With forestry certifications in hand, the Valentines went to work upgrading and extending the long-existing network of forest roads on their land, consistent with state and federal best practices. Nevertheless, in 2018, the Army Corps of Engineers arrived with a cease-and-desist order accusing them of filling federally regulated wetlands on their property without a CWA permit.

Now armed with the Sackett win, PLF is helping the Valentines protect their right to make productive use of their own land, and to ensure both agencies adhere to the Court’s ruling.

These are just three instances, but given federal bureaucrats’ love of regulation, it is likely PLF will take on even more cases that force the EPA and Army Corps to follow the Court’s ruling.

“The EPA and the Army Corps cannot carry on as though the Supreme Court didn’t mean what it said in Sackett,” said Paige Gilliard, an attorney at Pacific Legal Foundation involved in PLF’s post-Sackett litigation. “The Court meant to rein in the agencies. and we will ensure that happens with litigation when they exceed their authority.”