“SOMEBODY MUST HAVE SLANDERED Josef K.,” Franz Kafka writes in the opening line of The Trial, “for one morning, without having done anything wrong, he was arrested.” Josef K. spends the novel in a futile (and ultimately fatal) quest to learn from a mindless bureaucracy what his supposed crime is and how he can prove his innocence.
At one point, a priest tells Josef K., “It is not necessary to accept everything as true. One must only accept it as necessary.”
The Environmental Protection Agency has adopted this same stance in the case of Sackett v. EPA, which has now spanned 15 years and gone to the Supreme Court twice, most recently in October.
For the EPA, it’s not necessary to accept as true that Mike and Chantell Sackett were endangering waterways when they tried to build a home on their landlocked residential lot. The Sacketts are just supposed to accept that it’s necessary for their property to remain empty.
If the agency had its way, the Sacketts would have surrendered back in 2007—and accepted whatever fate the EPA dealt them.
ON MAY 3, 2007, three EPA officials showed up unannounced on the Sacketts’ residential lot in Priest Lake, Idaho.
Mike and Chantell Sackett weren’t there; but a small construction crew was working on their two-thirds-acre lot, which is a stone’s throw from other houses. The Sacketts planned to build a modest three-bedroom home there. The construction crew was moving gravel in preparation.
Until the government arrived.
The Sacketts’ contractors were ordered to stop work. The lot, the EPA announced, contained some wetlands. Spreading clean gravel was “filling” the alleged wetland, which the Clean Water Act prohibits without a permit.
One of the Sacketts’ workers asked the EPA what authority it had to shut down a job site. When asked for evidence the property contained wetlands, one EPA official vaguely said there was water on the property. (It was later revealed that the officials had received an anonymous “tip” about the property and had come from as far as Boise—an eight-and-a-half-hour drive away—to check it out.)
The next day Chantell spoke to an EPA official on the phone. When she protested that there were no wetlands on the lot, the official told her they were on the EPA’s wetland map. But after Chantell reviewed the map, she called the EPA and told them that her property was not on the map.
The EPA’s response? “Well, those maps aren’t accurate.”
IN JUNE, THE SACKETTS received a formal-looking “Request for Information” from the EPA. Sent by certified mail, the 10-page document announced the EPA was “investigating” the Sacketts and issued a list of questions. Mike and Chantell were given 15 days to respond and told that “failure to provide all the information requested” may constitute a violation of the Clean Water Act, punishable by “an enforcement action and the imposition of civil and/or criminal penalties or fines.”
The questions the EPA demanded answers to were somewhat daunting, especially given that Mike and Chantell didn’t believe their property contained wetlands. For example:
In their response to the EPA, Mike and Chantell stressed that they had local building permits in hand. They also pointed out that their lot was surrounded by paved roads and developed properties. It wasn’t like they were trying to build in the middle of the wilderness.
Instead of backing down, the EPA ordered Mike and Chantell to remove the gravel, restore the alleged wetlands, plant wetlands vegetation, fence off the property, and then wait a few years. Only after a few years could they apply for a permit—a permit which, by the way, takes on average 788 days and $271,596 to obtain.
This wasn’t just a request. It was an order. And the EPA made clear that if the Sacketts didn’t comply, they would be saddled with fines of thousands of dollars per day for violating the order.
What’s even worse is that if the Sacketts had done exactly as the compliance order said, they still wouldn’t have been able to build their home. An EPA official eventually told an upset Chantell that she would likely never get a permit for the lot and should consider building elsewhere.
NATURALLY, THE SACKETTS WANTED to contest the EPA’s finding that their lot contained wetlands. But the EPA said no. In a mash-up of Kafka and Joseph Heller’s Catch-22, the EPA told the Sacketts they couldn’t challenge any wetlands determination until after they applied for (and were denied) a wetland “dredge and fill” permit.
In other words: Once the EPA says your land contains wetlands, you have no choice but to apply for a permit to fill wetlands—even if you’re certain the land doesn’t actually contain wetlands.
It’s not necessary to accept everything as true. One must simply accept it as necessary.
After the Sacketts sued, the Ninth Circuit Court of Appeals agreed with the EPA. Fortunately for Mike and Chantell, the U.S. Supreme Court heard their case and ruled unanimously that they had a right to challenge the wetlands finding without having to follow the EPA’s dog-and-pony-show permit process.
That was in 2012. You’d think that after winning the right to make their case, things would move quickly for the Sacketts.
But the EPA, an $11-billion agency represented by a team of lawyers at the Department of Justice, can make the wheels of justice turn slowly.
After the first Supreme Court victory, the Sacketts’ case went down to the trial court. The EPA spent the next several years collecting samples and gathering evidence that they presented to the court as proof that the property had wetlands.
But the EPA’s “proof” was problematic.
In order to regulate anything, a federal agency has to meet two tests. First, the U.S. government can act only according to a power spelled out in the Constitution. And second, Congress must give the regulating agency the power to regulate. Here, the constitutional power is found in the Commerce Clause, which gives the federal government the exclusive power to regulate commerce among the states. And the statutory power is found in Section 404 of the Clean Water Act.
Exactly how does building a three-bedroom home in an Idaho subdivision involve commerce among the states? And where does the EPA or the Army Corps of Engineers find authority in the Clean Water Act, which never actually defines what a wetland is?
The EPA’s theory is that because the Sacketts’ lot is 300 feet from Priest Lake, which is large enough for recreational boating, building a home on the Sacketts’ lot would affect interstate commerce.
Never mind that the property is in a residential subdivision, separated from the lake by a road and a block of homes, and has no meaningful hydrological connection to Priest Lake. In the EPA’s view, that’s close enough—at least, close enough for government work.
IF THE EPA HAS ITS WAY, millions of American homeowners could wake up one morning and find themselves in the exact same position as the Sacketts: at the wrong end of a Clean Water Act investigation, with little hope of proving your innocence.
After all, it’s impossible to follow federal wetlands rules when no one knows exactly what a wetland is.
In one notorious case, the Army Corps of Engineers claimed to have jurisdiction over quarry ponds in Illinois that had absolutely no connection to any navigable waterway. Instead, the Corps adopted what became known as the “glancing goose” test: Because ducks and geese might land on the ponds, and because people might cross state lines to hunt migrating birds, there was enough of a connection to interstate commerce to regulate the ponds.
In that 2001 case, Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, the Supreme Court didn’t buy it. It held that the ponds were free of federal control. But that didn’t stop the federal government from trying other novel approaches to expand its jurisdiction.
In 1989, developer John Rapanos was preparing a 54-acre parcel of farmland that was at least 11 miles from a navigable waterway. Regulators swooped in, telling him he needed a permit because the land was a wetland and thus “water of the United States” covered by the Clean Water Act.
Twelve years of threats and litigation followed.
PLF took John’s case to the Supreme Court, arguing that the land was not a wetland subject to federal jurisdiction. In 2006, the Court agreed, but only partially: It began by noting that “the enforcement proceedings against Mr. Rapanos are a small part of the immense expansion of federal regulation of land use that has occurred under the Clean Water Act—without any change in the governing statute.”
While five Justices agreed that the regulators had gone too far, they couldn’t agree why. Led by Justice Antonin Scalia, four Justices said that there had to be a surface water connection to a navigable waterway for the feds to control a wetland. Without that, the feds had no power over John Rapanos.
Four other dissenting Justices said, essentially, “Whatever EPA says is good enough for us.” And Justice Anthony Kennedy issued a lone opinion, saying that for the government to be able to regulate a wetland, the regulators must show that activity on the alleged wetland will “significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’”
The problem is that no one has ever figured out exactly what that means.
Lacking a five-vote majority, the EPA and most lower courts have defaulted to Justice Kennedy’s so-called “significant nexus” test—which in practice involves so many complicated factual studies that the courts usually just throw up their hands and go along with whatever the Army Corps or EPA says.
ON OCTOBER 3, 2022, PLF senior attorney Damien Schiff argued the Sacketts’ case at the Supreme Court a second time—a decade after he first took the case to the Court. This time he challenged the EPA’s determination that Mike and Chantell’s property contains federally protected wetlands.
The Court’s decision, which will likely come in the spring, will finally give the Sacketts an answer to the question they’ve been pursuing for 15 years: Did the federal government have the right to stop construction on their home? It should also clarify the split Rapanos decision from 2006 and give us a long-overdue common sense understanding of what a wetland subject to federal jurisdiction looks like.
When a wrong guess could cost millions of dollars in fines and jail time, it shouldn’t be this difficult for the average person to know whether a piece of ground is subject to federal oversight. And the federal government shouldn’t act like the de facto land-use czar in every state and county in the nation.
In Kafka’s The Trial, Josef K. spends the remainder of his short life wandering from government office to government office trying desperately to prove his innocence of an unknown crime. In America today, landowners must spend their time and money seeking permits to work on property that may or may not contain wetlands that may or may not be subject to federal oversight.
Unless the Supreme Court clarifies the matter, if a citizen guesses wrong, he may join Josef K. in the annals of people ground under the wheels of the bureaucratic state. And that’s precisely what PLF exists to prevent.
