At a time of steep home prices and high mortgage rates, the prospect of 265 new, single-family houses going up in one of the nation’s fastest-growing metropolitan areas provided a ray of hope to prospective homebuyers in Salt Lake City.
But a federal agency’s claim of wetlands jurisdiction over a small drainage ditch on the edge of the 142-acre parcel where the homes are to be constructed has brought the project to a screeching halt.
The U.S. Supreme Court’s 2023 ruling in Sackett v. EPA put clear limits on federal authority to regulate wetlands under the Clean Water Act (CWA), but the Army Corps of Engineers persists in throwing its weight around as if nothing had changed. If the Corps’ action on the property north of Salt Lake City is allowed to stand, there is nothing to keep the agency’s bureaucrats from imposing similar restrictions on landowners elsewhere in the country.
About 20 years ago, longtime Utah residential real estate developer Lew Swain and his business partner Brent Baily eyed land just south of Willard in Box Elder County for development as a subdivision. They established a company, Willard Land, bought the parcel, and gave their project a name, “Old Farm Subdivision.” After acquiring assorted permits and agreeing to the construction of regional water and sewer lines connecting the subdivision and other properties to Willard City’s public systems, things appeared to be going smoothly. But that changed when Willard Land encountered an obstacle that had bedeviled rural landowners for decades.
Under the CWA, the Corps and the Environmental Protection Agency share jurisdiction over discharges into “navigable waters.” But over time, the Pacific Legal Foundation points out, EPA and the Corps “interpreted the term ‘navigable waters’ not as a limitation on their authority, but as a near limitless grant of authority to assert control over enormous areas of private land across the country,” (emphasis in the original). Eventually, the agencies’ interpretation of “navigable waters” came to include “small ditches, isolated wetlands, and all manner of otherwise dry land features.”
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