


Imagine spending the money, time, and effort to build a new home only to have federal bureaucrats inform you that if you backfill your property with dirt and rocks, you must either pay hundreds of thousands of dollars in fines or risk becoming a criminal. That is what happened to Idaho residents Michael and Chantell Sackett at the hands of the Environmental Protection Agency , and it almost ruined them. Thankfully, the Supreme Court stepped in with a decision that will hopefully curb bureaucratic overreach and signal that other regulations never passed by Congress will similarly be tossed in the wastebasket.
The Sacketts drew attention from the EPA because their property was across the street from a tributary so small it was not named. That tributary fed into a small non-navigable creek. That non-navigable creek fed into Priest Lake. Because the EPA has jurisdiction over “lakes” under the Clean Water Act, the EPA felt that it could punish the Sacketts if they backfilled the foundation of their house. The agency was concerned the “soil and gravel” the Sacketts used would somehow see itself across the street into a tributary, then into a creek, and then finally into a distant lake.
ESG: WHAT IT IS AND HOW IT AFFECTS YOU, EVEN IF YOU DON'T REALIZE ITThe court’s decision in this case is significant for a couple of reasons, starting with the fact that it helps limit federal agencies to the statutory text that gave them power in the first place. The EPA had been claiming jurisdiction far beyond the authority Congress wrote into the Clean Water Act. In the Sacketts’ case, for example, the EPA claimed it was enforcing a provision of the act that gives the agency jurisdiction over “waters of the United States,” which can include wetlands if connected to a stream, ocean, river, or lake. The EPA claimed the unnamed tributary was a “wetland.”
The Supreme Court rightly drew a line on the limits of what can be considered a “water” under the statute. It stated that for the EPA to have jurisdiction, the water must be “indistinguishable” from the waters of the U.S., in this case Priest Lake, which means there must be “continuous surface connection.” The Sacketts did not even have water on their property, and the waterway near their property was not “indistinguishable,” nor did it have “continuous surface connection” with a “water” that the EPA can regulate. This commonsense statutory interpretation is significant in limiting the power and the scope of the EPA in its enforcement of the Clean Water Act.
The court also touched upon another significant area that reaches well beyond the EPA. There are more than 300,000 federal rules and regulations that bear criminal consequences. These de facto laws never passed through Congress. Our elected representatives often never consider them, let alone vote them into law. Rather, unelected bureaucrats wrote and quietly passed them using a rule-making process that too few people notice or follow. Often, these regulations are sweeping, and citizens can violate these laws, and become criminals, without even realizing it. All of this for behavior, such as improving your own property, most people consider “normal,” not nefarious.
The EPA’s application of the Clean Water Act in Sackett v. EPA is a perfect example. The EPA’s regulations were broad and vague. The court noted that citizens are “left to feel their way on a case-by-case basis” as to whether their property somehow connects to a body of water. The court noted that 75% of people who ask the EPA if they are subject to the Clean Water Act end up being told that they are. If someone wants to challenge the determination, he or she faces either years of litigation or a lengthy permitting process, both of which are prohibitively expensive.
CLICK HERE TO READ MORE FROM RESTORING AMERICAIn Sackett, the court established boundaries to this problem. Where a rule “could sweep so broadly as to render criminal a host of what might otherwise be considered ordinary activities, we have to be wary about going beyond what Congress certainly intended the statute to cover.” In short, bureaucrats cannot criminalize what Congress did not intend for them to criminalize. This is significant.
The Supreme Court did landowners and all citizens a tremendous service in the Sackett decision. By limiting the reach of the Clean Water Act, many people can now build without the fear of the EPA claiming regulated “water” is on their property. And hopefully, it put government bureaucrats on notice that they cannot exceed the authority they have been given to arbitrarily impose criminal penalties on citizens merely performing “ordinary activities.”
Curtis Schube is the executive director for the Council to Modernize Governance, a think tank committed to making the administration of government more efficient, representative, and restrained. He is formerly a constitutional and administrative law attorney.