IMAGINE YOU OWN a piece of land. It’s not in the wilderness; it’s in a subdivision. You start to build a home there.

But the Environmental Protection Agency says your small plot of land contains wetlands. Even though it’s in a subdivision surrounded by other houses, the EPA says you can’t continue construction—and they’re threatening to fine you tens of thousands of dollars a day.

This kind of thing really happens. For years, the EPA, under the purported authority of the Clean Water Act, has been designating land as “navigable waters” (also known as “waters of the United States”) and then forcing property owners to spend thousands of dollars in permits or fines. Countless acres across America are sitting empty, frozen in regulatory limbo, while the EPA uses its multi-billion-dollar budget to intimidate and harass homeowners.

But this fall, the Supreme Court could stop the EPA from ever doing it again.

The Court has agreed to hear Sackett v. EPA, the case of an Idaho couple who has been battling the EPA—with PLF’s help—over a half-acre of land for 15 years.

This will be PLF’s 17th time at the Supreme Court. This time, we’re hardly starting from scratch.

The Sacketts’ empty lot in Idaho, surrounded by neighboring houses.

We’ve already won one victory for the Sacketts at the Supreme Court, back in 2012. (Yes, that’s how long we’ve been working to free this half-acre of Idaho land from EPA control.)

The EPA initially claimed property owners didn’t even have the right to challenge its compliance orders in court. PLF took the agency to court anyway—all the way to the Supreme Court, where we won a unanimous decision holding that the Sacketts had the right to a judicial review of the EPA’s actions. 

Our case now cuts to the heart of the matter: The EPA has been abusing its Clean Water Act authority by radically stretching the definition of “navigable waters” to include, as the Ninth Circuit put it in the Sacketts’ case, “a soggy residential lot.” The agency is asserting its regulatory power over residential land that doesn’t meet any commonsense definition of navigability, or even of just plain “waters.”

Unbelievably, federal regulators are also extracting thousands of dollars from hopeful homeowners through byzantine permitting processes and fines. After telling the Sacketts they could be fined $37,500 a day if they didn’t return the land to its original condition, the EPA later argued in court that the fine could be as much as $75,000 a day—as if it’s acceptable for EPA regulators to act like gangsters shaking down the neighborhood.

PLF Senior Attorney Damien Schiff giving a press conference in front of the Supreme Court in 2012.

Even before PLF started representing the Sacketts, we were laying the groundwork for this showdown with the EPA in an earlier case: Rapanos v. United States (2006).

John Rapanos’ fight with federal regulators dates all the way back to 1989, when the Michigan developer was clearing a 54-acre site to build homes and a shopping mall. Regulators brought civil and criminal charges against John, claiming that because the property next to John’s had a drainage ditch through which water could flow dozens of miles to the Great Lakes, and because John’s adjacent property was soggy, John’s parcel qualified as “navigable waters.”

While PLF won a victory for John at the Supreme Court, the Justices weren’t able to produce a majority opinion—meaning, the five Justices who voted in John’s favor couldn’t agree on reasoning. In a plurality opinion written by the late Justice Antonin Scalia, four Justices agreed that “waters of the United States” at most denote “relatively permanent, standing or flowing bodies of water,” and that the feds can regulate a wetland as such a “water” only if the wetland has a “continuous surface connection” with that water. But Justice Anthony Kennedy argued in a concurrence that a wetland doesn’t need any such surface connection but rather only a vaguely defined “significant nexus” to some downstream navigable water.

The Court’s split decision allowed the feds to continue to abuse their authority.

In the 16 years since Rapanos was decided, presidential administrations have come and gone. Each administration has attempted to codify its own idiosyncratic interpretation of the Clean Water Act—and each time, the next administration has disagreed and started over.

Meanwhile, the only Supreme Court guardrail protecting homeowners from EPA overreach is Justice Kennedy’s opaque “significant nexus” test for wetlands. The test’s lack of clarity has allowed federal bureaucrats to assert much more power and authority than they should have—as is bureaucrats’ nature.

If PLF is able to win the Sacketts’ case at the Supreme Court next term, the victory will affect thousands of property owners. It could free up millions of acres across America for new homes, farms, and businesses.

What no presidential administration can achieve, the Supreme Court can. It can definitively say what the EPA is, and isn’t, allowed to do. After all, the role of the Supreme Court is “to say what the law is,” as Chief Justice John Marshall wrote in Marbury v. Madison (1803).

That’s what makes the Supreme Court a uniquely powerful institution—and that’s why PLF has fought so hard to bring Sackett v. EPA to the Court.