The opinion of the Supreme Court of the United States (SCOTUS) on Waters of the United States (WOTUS) rule and the Clean Water Act ( CWA) was delivered today. To say this is a day of celebration for Americans across the country from residential and rural property owners to farmers and ranchers is an understatement.
Supreme Court of the United States - Sackett vs EPA
The case that made it all happen is Sackett vs Environmental Protection Agency. With the plans of building a family home, the Sackett family had purchased a vacant lot in Priest Lake, Idaho. Soon their dreams of a beautiful home turned into a nightmare when they started preparing the lot for construction. The EPA claimed the Sackett’s lot contained wetlands that were “navigable waters” when in fact their lot was located across a road from an irrigation ditch. According to the opinion submitted by Justice Alito, the EPA demanded that the Sackett family restore their property according to a plan submitted by the EPA and were subject to fines of $40,000 per day if they did not comply.
The opinion stated:
“Thankfully, applying well-established navigability rules makes this a straightforward case. The “wetlands” on the Sacketts’ property are not “waters of the United States” for several independently sufficient reasons. First, for the reasons set out by the Court, the Sacketts’ wetlands are not “waters” because they lack a continuous surface connection with a traditional navigable water. See ante, at 27. Second, the nonnavigable so-called “tributary” (really, a roadside ditch) across the street from the Sacketts’ property is not a water of the United States because it is not, has never been, and cannot reasonably be made a highway of interstate or foreign commerce. See SWANCC, 531 U. S., at 172.”
Better Yet – The End of An Era of Persecution
In addition to rendering a decision about the Sackett family’s private property in Idaho, the opinion made clear the definition of “waters of the United States”, and addressed states’ rights as well as the egregious overreach by the EPA and the Clean Water Act.
This opinion will end a decades-long era of egregious federal overreach, persecution, and harassment of Americans by unelected officials in the EPA and the Army Corps of Engineers who used their own interpretations of “Navigable Waters’ or “Waters of the United States” to control and punish landowners.
The opinion stated:
“…the EPA’s interpretation gives rise to serious vagueness concerns in light of the CWA’s criminal penalties, thus implicating the due process requirement that penal statutes be defined “ ‘with sufficient definiteness that ordinary people can understand what conduct is prohibited.’ ” McDonnell v. United States, 579 U. S. 550, 576. Where penal statutes could sweep broadly enough to render criminal a host of what might otherwise be considered ordinary activities…”
Farmers, Ranchers, and Rural Families Across America Have Been Harassed for Decades
The Sackett family is just one of a long line of rural property owners, farmers, and ranchers who have been subjected to egregious overreach. There are many other cases of abuse rendered by the EPA and Army Corps of Engineers against Americans including Modesto farmer, John Duarte who was persecuted for plowing a wheat field, to a Wyoming family for building a permitted pond and many more. All of the cases subjected the targets of the EPA and Army Corps of Engineers to egregious fines ranging in the tens of thousands of dollars per day.
According to the New Civil Liberties Alliance article:
“The Environmental Protection Agency (EPA) and Corps of Engineers (COE) are tasked with implementing the Clean Water Act (CWA), including the 404-permitting program, which applies to “navigable waters of the United States.” The EPA is notorious for pushing the outer boundaries of jurisdiction under the Act, with the Supreme Court in. Rapanos v. United States, noting the “immense expansion” of federal regulation of land use that has occurred under the CWA in the last forty years “without any change in the governing statute.”
“The EPA and COE have, for example, identified storm drains, roadside ditches, ripples of sand that may contain water once a year, and desert washes as “navigable waters of the United States” all in order to restrict private and public land use under the auspices of the CWA. They have used the 404-permitting process to either outright reject projects, to delay them indefinitely, or to make them so cost-prohibitive that they are no longer viable. The Supreme Court reported in Rapanos that the average applicant for a 404 permit spends 788 days and $271,596 in completing the process. “
All Justices Concurred and Additional Opinions Regarding States Rights and Navigable Waters Were Proffered
While all the justices concurred that the Sackett’s property was in fact, not navigable waters, other justices added their own opinions regarding federal overreach, the intent of our founding fathers, and the intent of the words used by Congress in the Clean Water Act. The opinion of the court was delivered by Justice Alito in which ROBERTS, C. J., and THOMAS, GORSUCH, and BARRETT, JJ., joined. THOMAS, J., filed a concurring opinion, in which GORSUCH, J., joined. KAGAN, J., filed an opinion concurring in the judgment, in which SOTOMAYOR and JACKSON, JJ., joined. KAVANAUGH, J., filed an opinion concurring in the judgment, in which SOTOMAYOR, KAGAN, and JACKSON, JJ., joined.
Don’t Be Misled by Progressive Media - Read the Opinion to Appreciate the Work of the Supreme Court
The media is making this opinion solely about the environment and is vying to mislead the public by making false claims that our environment and especially our water in the United States is now at risk. Nothing could be further from the truth. The Clean Water Act still stands. There are still protections in place for the environment and the EPA and the Army Corps of Engineers still wield the power of oversight.
The truth of the matter is that the law, common sense, and balance have ruled the day.
In the interest of brevity, we have left out a wealth of supportive statements in the opinions rendered by the justices of the Supreme Court in this case.
The court reviewed the long history of the Clean Water Act and the resulting impact on American families and businesses and carefully considered all the intricacies.
These excerpts to note are from just one of many sections (pages 18 and 19):
“With the benefit of a half-century of practice under the CWA, it is worth taking stock of where things stand. The agencies maintain that the significant-nexus test has been and remains sufficient to establish jurisdiction over “adjacent” wetlands. And by the EPA’s own admission, “almost all waters and wetlands” are potentially susceptible to regulation under that test. 80 Fed. Reg. 37056. This puts many property owners in a precarious position because it is “often difficult to determine whether a particular piece of property contains waters of the United States.”
“…This is a unique aspect of the CWA; most laws do not require the hiring of expert consultants to determine if they even apply to you or your property”. And because the CWA can sweep broadly enough to criminalize mundane activities like moving dirt, this unchecked definition of “the waters of the United States” means that a staggering array of landowners are at risk of criminal prosecution or onerous civil penalties. What are landowners to do if they want to build on their property? The EPA recommends asking the Corps for a jurisdictional determination, which is a written decision on whether a particular site contains covered waters.”
“Even if the Corps is willing to provide a jurisdictional determination, a property owner may find it necessary to retain an expensive expert consultant who is capable of putting together a presentation that stands a chance of persuading the Corps.12 And even then, a landowner’s chances of success are low, as the EPA admits that the Corps finds jurisdiction approximately 75% of the time.”
“If the landowner is among the vast majority who receive adverse jurisdictional determinations, what then? It would be foolish to go ahead and build since the jurisdictional determination might form evidence of culpability in a prosecution or civil action. The jurisdictional determination could be challenged in court, but only after the delay and expense required to exhaust the administrative appeals”
“And once in court, the landowner would face an uphill battle under the deferential standards of review that the agencies enjoy. See 5 U. S. C. §706. Another alternative would be simply to acquiesce and seek a permit from the Corps. But that process can take years and cost an exorbitant amount of money. Many landowners faced with this unappetizing menu of options would simply choose to build nothing.”
“With this history in mind, we now consider the extent of the CWA’s geographical reach.”
We have included a link to the opinion and encourage you to read through it and we hope Americans across the country are celebrating.
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