Last year, during a series of lawsuits brought against both the Army Corps of Engineers and the Environmental Protection Agency, it became obvious that the courts were taking a hard look at the definition of the “Waters of the United States” and how the agency planned to regulate the activities of landowners in the name of the Clean Water Act. The abuses of the government were highlighted as many individuals and businesses were left facing difficult choices when Uncle Sam came calling and restricted their private activities based on “damage” that might be done to bodies of water as significant as a drainage ditch or a damp section of their lawn.

While it may sound humorous in the typical way that many government mandates strike us as ridiculous, it was a very serious matter for the landowners. Once such a pronouncement was made by the feds, they could either cancel their plans or incur monumental fines which would continue to stack up while they pursued some sort of appeal though the courts. But now the Supreme Court has weighed in with a rare, unanimous decision and determined that this is an unacceptable situation. (Washington Post)

The Supreme Court on Tuesday made it easier for landowners to challenge the decision of federal regulators that the use of property is restricted by the Clean Water Act.

The justices ruled unanimously that property owners could file suit against the U.S. Army Corps of Engineers over the agency’s determination that their land contains “waters of the United States” covered by the Clean Water Act, which provides criminal and civil liabilities for violations.

The government contended that such suits could be brought only after the landowner filed for a permit and was dissatisfied with the result. Alternatively, the government said, the conflict could be resolved if the owner proceeded without a permit and faced sanctions.

But Chief Justice John G. Roberts Jr. said neither alternative was acceptable. Proceeding without a permit opens owners to penalties of up to $37,500 a day if they are determined to have violated the act.

This sounds so suspiciously close to common sense by the entire panel of SCOTUS justices that my head is spinning. Property owners have been locked in battles with environmental regulators for the past forty years or more, frequently incurring crippling fines and legal costs over matters which the average citizen would find more suitable for a Monty Python skit. And keep in mind that we’re not talking about someone establishing a factory where they plan to dump barrels of mercury into the local river. These are frequently people who want to build a stock pond for their cattle on a stream which runs through their property or grade their lawn for better drainage and easier mowing.

Property ownership and the dream of controlling your own little piece of the American dream were once considered a cornerstone of our culture. The idea that the federal government should micromanage our affairs to this level is abhorrent to anyone who values any sort of personal independence and responsibility, and yet we’ve been fighting these battles for decades. It all dates back to the environmental awareness revolution of the sixties and seventies, when what should have been a great, common sense idea began to morph into a cudgel for the government to use against its own citizens. Everyone was able to pretty much agree that we didn’t want our water turned into toxic soup and that the rivers and streams should belong to everyone for uses ranging from potable water and irrigation to recreational activity. Some regulations and limits were clearly in order to prevent flagrant abuse. But in the usual way of Washington, that good idea quickly turned into something far more intrusive and insulting.

What’s been addressed by the Supreme Court here isn’t the overall question of whether or not there can be regulations, but the stacked deck which property owners faced should they wish to question their betters in the federal government. The challenge process made the old adage about fighting City Hall into a daunting reality. If the government wasn’t able to show an urgent need to avoid a crisis, how could they move so quickly to demand crushing fees and penalties from individuals before the question had received a single hearing? It’s madness, and now it has been at least partly dismantled.

I rarely get the opportunity to say this to the Supremes – or anyone in the federal government for that matter – but… well done.

JohnRoberts