The EPA thinks dry land is "navigable water"

The Supreme Court recently kicked off this term with oral arguments in Sackett v. EPA, a blockbuster environmental law case that could provide property owners with long-overdue clarity regarding the enjoyment of their land.

To understand the facts of the controversy is to sympathize with the petitioners. In 2004, Chantell and Mike Sackett purchased a 0.63-acre vacant lot near Priest Lake, Idaho, with the intention of building their family home. After obtaining all necessary local permits, the Sacketts began construction. But shortly after starting preliminary earthmoving activities, government officials entered the lot and said to the Sacketts’ construction workers that the homesite contained “wetlands” subject to federal regulation as “navigable waters” under the Clean Water Act.

One could forgive the Sacketts for being surprised. Located in a mostly built-out residential subdivision, their property contains no bodies of water. Nor does the lot include any surface water connections to any body of water. To the north, there lies a county-operated road; to the south, east, and west, there sit residential buildings. Despite the absence of water and the prevalence of surrounding development, the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) claim that soggy pockets of the Sacketts’ property are “navigable waters” and are therefore subject to regulation under the Clean Water Act.