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It took five years, but Mike and Chantell Sackett have finally won the right to have their day in court. In a unanimous decision, the Supreme Court sided with the Idaho couple in their battle with the EPA, saying that the Sacketts were entitled to due process under the Clean Water Act, no matter what the EPA might think.
The case, which became a national symbol of EPA-overreach, centered on the EPA’s claim that the small parcel of lakefront property upon which the Sacketts intended to build a vacation home would disturb a wetland. Under EPA rules, the couple could not commence construction until the agency and the Army Corps of Engineers either issued a wetlands permit or decided that a permit wasn’t needed.
The Sacketts disputed the claim that wetlands existed on their property at all and they did not believe that they should have to go through the long, expensive and arduous EPA permitting process. Instead, they wanted to take the EPA to court without awaiting a permitting decision. The EPA maintained that permit applicants must wait until the agency makes formal decisions on permit applications before anyone can resort to judicial action.
The EPA’s position is essentially that it should be allowed to evaluate all of the evidence and relevant data before anyone questions the agency’s preliminary judgment. On the other side, many permit applicants (like the Sacketts) complain that the process itself amounts to a penalty. By holding up permit decisions for a year or more and by often requiring applicants to develop heaps of expensive data, obtaining even a favorable decision can be enormously expensive. In his opinion, Justice Samuel Alito summed up the frustration that many property owners feel when dealing with wetlands regulation:
“The reach of the Clean Water Act is notoriously unclear. Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the act, and according to the federal government, if property owners begin to construct a home on a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency’s mercy,” Alito wrote.
Regulated wetlands are characterized not just by the wetness, but by the type of soil and the sorts of plants growing in the soil. In addition, the wetland must be connected to “waters of the United States” (navigable waterways) in order to be a “jurisdictional wetland” (one over which the EPA and Army Corps have regulatory authority). Using this criteria, overly-conservative and often inexperienced EPA employees sometimes making shocking decisions about qualifies as a jurisdictional wetland.
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