The Supreme Court, the EPA and Wetlands

In 2005 Mike and Chantell Sackett purchased less than an acre of land to build a home near to but not adjoining a lake. The lake front homes had already been built. After obtaining building permits from the county, they began the building process by spreading fill material over the lot. Two people from the U.S. EPA and one person from the Army Corps of Engineers appeared and issued the Sacketts an “Administrative Compliance Order” (ACO), alleging the land was a wetland subject to the Clean Water Act jurisdiction and ordered the Sacketts to restore the land to its original condition or face $37,500 in fines per day for violation of the Clean Water Act and undisclosed to the Sacketts, an additional $37,500 per day for violating the compliance order. The Sackett family appealed for a hearing believing that their land was not a wetland, but was denied by EPA and the federal court.
In addition under an agreement between the U.S. EPA and the Army Corps of Engineers the Sacketts could not obtain a permit (even if they wanted to) until the open enforcement action was concluded. The Army Corp of Engineers insisted the site must be restored to its previous condition to apply for a permit to place fill material on a wetland. However, under the new guidance the EPA and Army Corps of Engineers can determine a site is a wetland subject to the Clean Water Act based on “general scientific literature,” in lieu of actual case-specific analysis of the water itself, and so the Sacketts found themselves in a Catch 22.

On Wednesday, March 21, 2012 the U.S. Supreme Court unanimously ruled that the Sacketts may seek pre-enforcement judicial review of ACOs and that their inability to seek pre-enforcement judicial review of the ACO violated their rights under the Due Process Clause of the U.S. Constitution. The EPA had maintained that the ability to issue compliance orders with huge financial penalties without the ability to seek recourse was an effective means to obtain compliance. However, the Supreme Court disagreed. The effective scope of the federal regulations and power were expanded by the 2011 Guidance to include any conceivable naturally occurring water.
The Clean Water Act (CWA) of 1972 makes it a crime to discharge pollutants into the "navigable waters of the United States." However, what constitutes a "pollutant" or "navigable water" has been open to interpretation and a series of guidance documents over the years have continually expanded the definition of “navigable waters of the United States” until it is now defined by the US EPA and the Army Corps of Engineers as:
Traditional navigable waters
Interstate waters
Tributaries to navigable waters and interstate waters
Seasonal tributaries, steams or creeks
Wetlands adjacent to any of the above
And last year the agency added the “other” category that seems to include everything but swimming pools, fountains, irrigation ditches and stock watering systems. This Supreme Court ruling did not in any way narrow this interpretation of the reach of the Clean Water Act.

The National Cattlemen’s Beef Association (NCBA), the American Petroleum Institute and the Public Lands Council (PLC) filed amicus (friend of the court) briefs to the U.S. Supreme Court in the Sackett case because according to NCBA Deputy Environmental Counsel Ashley Lyon, this case could have far-reaching impacts on farmers and ranchers and all private landowners. Few of us can afford the legal resources to address an EPA enforcement action, or afford to restore properties to apply for a Clean Water Act permit if our property is deemed to be subject to the Clean Water Act under the guidance. The guidance is open to inconsistent interpretation and could be used unfairly as it was in this case. Now it is possible to obtain a decision that land is not subject to Clean Water Act before an ACO or enforcement action by the EPA. Though there are still no objective standards to determine which waters fall under the act.
There needs to be a consistency of standards in making a wetland determination. The degree of latitude that exits is unacceptable and results in inconsistent determinations and a Kafkaesque regulatory process. That is unacceptable in America. There should be standards like distance, hydrologic connection, and flow connection, size of watershed and storm impact that can be measured and considered in a consistent and quantified way so that a determination could be easily made and reviewed. The EPA Guidance has divorced the law from fact and abused their power potentially putting ordinary home owners at the mercy of EPA employees. It is time for congress to clarify the scope and jurisdiction of the Clean Water Act.