Friday, March 30, 2012 3:17 pm | By Paul Petrick
Last January, the United States Supreme Court heard oral arguments in the case of Sackett v. EPA, involving two Idaho property-owners with a .63 acre parcel near idyllic Priest Lake. The case centered on whether or not the Environmental Protection Agency (EPA) could issue a non-reviewable compliance order mandating that Michael and Chantell Sackett reverse construction on their home and obtain a multi-thousand dollar permit or face a fine of up to $75,000 per day. Last week, the Court’s nine jurists rendered their judgment on the EPA’s conduct.
In a unanimous decision, the Supreme Court ruled that property owners may challenge EPA compliance orders in court. This conclusion was telegraphed by the justices’ scathing criticism of the Obama Administration’s arguments before the Court in January. While certainly welcome news for America’s property owners, the Sacketts are not quite out of the woods.
Like much of the EPA’s harassment of property-owners, this action stems from provisions of the Clean Water Act (CWA). Under the CWA, the discharge of pollutants into navigable waters absent a permit is prohibited. However, the EPA’s definition of navigable waters includes wetlands adjacent to navigable waters. While one would find it difficult to pilot a boat across the Sackett’s yard, the EPA insists on labeling their property as navigable water.
Thanks to the Supreme Court, the EPA will now be forced to justify their actions in court. In the meantime, a cadre of senators is seeking a legislative remedy to the problem. The Defense of Environment and Property Act of 2012 was introduced by Sen. Rand Paul (R-KY) last month. This bill would define navigable waters as bodies of water that are “navigable in fact” or “permanent, standing, or continuously flowing bodies of water that form geographical features commonly known as streams, oceans, rivers, and lakes that are connected to waters that are navigable-in-fact.” For the last seven years, the Sacketts have had to bear the cost of lost time and treasure from their rendezvous with the EPA. Despite their recent legal victory, the right to build a house on their own property continues to elude Michael and Chantell Sackett.