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Landowners across the nation won in June when the U.S. Supreme Court issued its ruling in the case Sackett v. Environmental Protection Agency, which involved a longstanding Mackinac Center interest. Justices said the federal government had overstepped its authority when, in the name of regulating the “navigable waters” of the United States, it punished a family for moving dirt around on its land.
In 1972, Congress enacted the Clean Water Act, which made it a crime to discharge prohibited pollutants — and natural material such as dirt, sand and rocks — into the navigable waters of the United States.
The Army Corps of Engineers soon overstepped its authority, punishing a Macomb County developer for putting fill on its land. The resulting controversy eventually reached the high court in the 1985 case United States v. Riverside Bayview Homes. The court sided with the Corps.
An even more egregious example of bureaucratic overreach was the migratory bird rule, whereby if a bird could land on water somewhere on a piece of land, federal agencies could regulate it. The court overturned that rule in a 2001 case.
Another case from Michigan involved John Rapanos of Midland County. The Corps said he violated the Clean Water Act by filling in some wetlands on his property. As with Riverside Homes, the alleged violation occurred far from a navigable body of water. The Mackinac Center helped John, filing one of its earliest briefs with the Supreme Court. The brief told justices the problem they faced was a doctrine that let agencies interpret ambiguous statutes, as opposed to having Congress make clear choices.
The court, which called the Clean Water Act a potent weapon that imposes “crushing consequences even for inadvertent violations,” punted on the question of defining “navigable waters.” Landowners continued to suffer from the legal ambiguity, as they could face imprisonment for negligent discharges. They also could be fined at a rate of over $60,000 per day. The “civil penalties can be nearly as crushing as their criminal counterparts,” the court observed.
The fourth challenge to regulatory overreach came from the Sackett family, which in 2004 had purchased an Idaho lot to build a home. The Sacketts began to backfill with rocks and dirt, until the Environmental Protection Agency started threatening daily fines of $40,000. The EPA had again expanded its jurisdictional reach by defining “water of the United States” to include wetlands adjacent to nonnavigable tributaries. It said that such land, either alone or in conjunction with similarly situated wetlands, creates a “significant nexus” to a traditional navigable waterway. This meant that the agency had authority to regulate what happened to the land. The Sacketts’ land had a nonnavigable tributary on the other side of a 30-foot road. That tributary eventually fed into a nonnavigable creek which then fed into a lake, which the EPA considered navigable.
The Sacketts prevailed in their legal struggle, after years of accumulating fines and facing potential criminal sanctions. After two trips to the United States Supreme Court (both litigated by the Pacific Legal Foundation) and nearly two decades, the Sacketts and advocates of property rights were able to see regulators constrained. The court, finally, limited federal regulatory authority by defining “waters of the United States” to mean relatively permanent bodies of waters connected to interstate navigable waters and the wetlands sharing a surface connection with those waters.
If the federal government again seeks to maximize its control over almost every land-use matter in this country, it will be up to Congress, not the agencies, to make that effort. If it does so, friends of liberty will need to pressure Congress to balance individual property rights with concerns about environmental protection.
