Michael and Chantell Sackett’s ordeal reveals how rule by an unfettered administrative state can cause significant cost and hardship. For 16 years the couple has been battling the bureaucracy to build a home. The Environmental Protection Agency and U.S. Army Corps of Engineers claim their dry property is a wetland subject to federal regulation.
The Clean Water Act (CWA) authorizes EPA to regulate only “navigable waters” in interstate commerce. Yet the EPA said the Sacketts’ property was connected to a wetland some 30 feet away, which was connected to a ditch that connected to a nonnavigable creek that connected to a lake. Follow that?
Americans anywhere in the country could have their backyard declared a wetland, but they wouldn’t know it until the EPA swoops in and threatens enormous penalties for pouring herbicide on weeds. EPA advises landowners to solicit the Army Corps’ opinion before doing anything with their property. But 75% of the time the Corps claims jurisdiction.
Does federal jurisdiction really “encompass any backyard that is soggy enough for some minimum period of time?” Justice Samuel Alito asks in the majority opinion joined by Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch and Amy Coney Barrett. “How about ditches, swimming pools, and puddles?”
A majority in Rapanos (2006) couldn’t agree on how to limit EPA’s authority over wetlands. Four Justices said the Clean Water Act’s scope extended to “only those relatively permanent, standing or continuously flowing bodies of water” such as oceans, rivers and lakes, and wetlands that were directly adjacent and “indistinguishable” from those waters.
Keep pushing back on the administrative power grabs.