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A Win for the Little Guys on Property Rights? It happens

Photo of Gene Wunderlich

Readers of this column the past couple decades will recall my frequent discourses on WOTUS, or Waters of the United States. Let’s start at the beginning. If you stood on the banks of the Potomac River flowing through our nation’s capital in 1966, you would not have lingered. The river smelled like an open sewer, which it was. Many small towns were simply dumping raw sewage into the river that eventually flowed into the Chesapeake Bay. Anyone who fell into the Potomac was advised to get a tetanus shot. Heck, the Cuyahoga River in Ohio actually burst into flame in 1969 as a result of industrial pollutant waste.

1965’s Water Quality Act required the states to establish and enforce water quality standards for all interstate waters that flowed through their boundaries. The following year President Lyndon Johnson signed the Clean Waters Restoration Act which provided federal funds for the construction of sewage treatment plants. This act and others that followed over the next decades had a significant impact in reducing pollution and restoring clean rivers and lakes throughout the country.

Fast forward to the Obama administration where our current tale starts. 40 years after its first implementation, the Obama administration determined to vastly expand the definition of WOTUS by redefining what constituted a ‘navigable waterway’. Under the expanded ruling issued by the EPA, drainage ditches, irrigation ditches, seasonal streams, run-off from your roof, and a low-lying puddle in your yard could be defined as a ‘navigable waterway’. By the EPA’s own admission, nearly all waters and wetlands are potentially susceptible to regulation under this test, putting a staggering array of landowners, farmers, homeowners, and many others at risk of criminal prosecution for such mundane activities as moving dirt. Oblivious to this overreach, it required a court order resulting from numerous state lawsuits, to stay the widespread implementation of the ruling.

That stay remained in place until the Trump administration came along and one of its first actions was to send the thing back to the EPA for a rework that would not have such far reaching and deleterious consequences. Not surprisingly, the Biden administration sought to reassert the overreach of the Obama era rule. But the EPA was dealt a serious setback when the Supreme Court, in a victory for common sense and government restraint, set the ruling back to its original intent and scope earlier this year.

The impetus for this was a family by the name of Sackett. In 2007 the Sacketts decided to build a home on land they owned near Priest Lake, Idaho. After obtaining all necessary local permits, they began construction of a modest 3-bedroom home. After the Obama era rule change, the EPA showed up and issued a compliance order threatening the Sackets with fines of $10,000 per day if they continued to develop the property as they were in violation of the Clean Water Act (CWA) as newly defined by the EPA Why? Because the Sackett’s residence abutted a ditch that, after a rain, would flow into a stream that eventually flowed into Priest Lake, thus becoming a ‘navigable waterway’.

After being told there was no recourse other than to comply, and with decision in favor of the government by both their District Court as well as the 9th Circuit Court of Appeals, the Sacketts were told they couldn’t even sue the EPA over this obvious wrong. So they appealed it to the Supreme Court and in 2012 the Court decided their first case against the EPA and said, yes, in fact you can sue. Under the terms of Sackett I, the Court ruled that because the EPA’s orders constitute “final agency action” under the Administrative Procedure Act, federal courts may hear appeals from its orders. Further, that petitioners’ inability to seek pre-enforcement judicial review of the administrative compliance order violated their rights under the Due Process clause.

Subsequently the EPA withdrew its demand on the Sacketts and went away. But the Sacketts were wary. Having seen the focus and scope of WOTUS modified from administration to administration, and court to court, they decided they needed a more final decision that would prohibit the EPA from coming back on them at some future date to disrupt their plans yet again. That case, Sackett II, was just decided in May of this year in favor of the Sacketts and landowners everywhere. The Court, in a 9-0 decision, held that the EPA’s interpretation is inconsistent with the CWA’s text and structure and clashes with “background principles of construction” that apply to the interpretation of the relevant provisions. They further determined that the CWA extends to only wetlands that are “as a practical matter, indistinguishable from waters of the United States.” This means that in order to enforce, the EPA is required to prove that the body of water does in fact constitute a relatively permanent body of water connected to traditional interstate navigable waters and that any wetlands so defined must have continuous surface connection with that water so as to be indistinguishable from that water.

A 16 year battle that actually came down in favor of the good guys? Yeah, it can happen if you’ve got the money and perseverance to fight for it. The case makes interesting reading for students of private property rights and I encourage readers to check out the fascinating history at

Written by Gene Wunderlich, Sr. Staff Writer

Prior to his retirement in 2021, Wunderlich served on a number of local non-profits and boards. He spent the past decade as a legislative advocate for the housing and real estate industries as well as a coalition of local Chambers of Commerce advocating on behalf of small and local businesses.

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