 Everyone wants clean water, and America's public waterways haven't always been very clean. In 1969, the Cuyahoga River in Ohio was so polluted by Cleveland's manufacturing industry that it caught on fire. Bigger fires had engulfed the river before, but coinciding as it did with the rise of the modern environmental movement, the spectacle inspired a Time Magazine feature describing a river that oozes rather than flows. In 1970, Nixon signed the National Environmental Policy Act, and later that year he established the Environmental Protection Agency to make a coordinated attack on the pollutants which debase the air we breathe, the water we drink, and the land that grows our food. But in fighting to reduce the pollution of air, land, and water, the EPA has dictated to Americans what they can do on their property, even when it has no clear environmental benefit or exceeds the agency's authority. Now the EPA's broad mandate for the first time since its creation is facing a serious constitutional challenge. It's a case that started 15 years ago with a couple living in a small town in Idaho. When I was in high school, I was up there camping and fell in love with Bruce Lake and just had to try and figure out how to live there. There's no other place you'd want to be. It is so peaceful and calm. Mike and Chantel Sackett purchased Attractive Land, a budding and easement, which guaranteed them a prime view of Priest Lake. They planned to leverage their background and construction to build the lakefront home of their dreams. A few days into construction, the Sackett's received a surprise visit from the EPA and Army Corps of Engineers. They walked on to the property and said, you need to stop working immediately, and he said, why? They said, because we think you're filling in wetlands. The wetlands the government's agents were referring to was a residential lot in an established subdivision with a full sewer hookup 100 yards from the lake and a county title with no indication of wetland status. There was a nearby ditch draining into a stream that connected to the lake. It was separated from the lot by 30 feet of paved road. The proximity of the Sackett's land to the ditch, in addition to the existence of a subterranean water flow discovered beneath their lot as they began construction, meant that the residential lot was a federally protected wetland, according to the EPA. Although the Sackett's faced up to $75,000 a day for violation of the Clean Water Act in the compliance order, the EPA argued they had no right to challenge them in court until they actually took action to impose and collect the fine, which they could do retroactively at any time. With this threat looming over them, the Sackett's paused construction. The EPA also wanted the Sackett's to remove the gravel they'd poured, fence in the lot, and plant foliage, but the couple refused. We want you to fence it, and then we want you to plant these wetlands plants, and then we want you to watch it for three to five years and make notes, and we'll be able to come look at that and go, are you kidding me? Why would we do that? I mean, it's a lot in a subdivision. Do you want to create a wetland? That was in 2012. The Sackett's case went all the way to the Supreme Court, which ruled unanimously that the EPA's compliance orders were indeed subject to judicial review, meaning the agency couldn't retroactively find the Sackett's for being in violation of the order as the court challenge was adjudicated. Ten years later, the Supreme Court is taking up the next part of that case, a challenge to how the agency defines a wetland. The first decision got us the right to get into court, and now we hope to finally secure that victory. Damien Schiff is an attorney with the Pacific Legal Foundation, the nonprofit law firm that is arguing the case before the Supreme Court for a second time. He says a favorable ruling could finally constrain a federal agency that routinely bullies landowners. The big picture is a dispute that's roiled the property rights and environmental law communities for half a decade, and that is the scope of the Clean Water Act. The EPA and the Army Corps, who are the agencies that administer this law, have over the last several decades used their regulatory authority to radically expand what qualifies as a water in the United States. The Clean Water Act allows the EPA to regulate all of the country's navigable waters, from rivers to lakes to streams to oceanic channels. But the definition of navigable water has steadily expanded since the Act's passage in 1972. Farmers like Curtis Martin weren't allowed to add a man-made lake that increased the biodiversity of his land because EPA said it violated the Act. John Duarte almost lost his farm in California's Central Valley after EPA fined him more than $30 million in restoration fees. Reason covered Duarte's story back in 2017. These federal prosecutors can come in like the sheriff at Nottingham, decide for themselves what they think a family can pay, decide for themselves if they want to destroy a family and take their land away. If the federal prosecutors can come on this farm with this set of facts, there is no farm in America that is safe from this kind of prosecution. The Supreme Court weighed in on the EPA's expansive authority to regulate land in a 2006 case in which the agency had tried to stop a Michigan developer named John Rapanos from turning part of his 54-acre property into a shopping mall, even though it was more than 11 miles from the nearest navigable water. Because the land became swampy in the spring as the snow melted, they argued that Rapanos' development plan would destroy protected wetlands. He sued, and a five-four majority vacated the ruling against Rapanos. But, Justice Kennedy declined to join Scalia's plurality opinion that would have further limited the agency's regulatory authority. Scalia wrote that the standards the government sought gave the EPA and Army Corps of Engineers jurisdiction over between 270 to 300 million acres of swampy lands, including half of Alaska and an area the size of California in the lower 48 states, and that landowners spent more than $1.7 billion a year obtaining wetlands permits. Kennedy rejected Scalia's reasoning and devised the significant NEXUS standard, which gave the government the authority to regulate the land if the pollution would significantly affect the chemical, physical, and biological integrity of nearby navigable water. Kennedy's standard carried the day in the lower courts, but Schiff says it's far too ambiguous to hold any longer. That ambiguity is one that unfortunately EPA and the Corps have made a little too much of, and I think that's really what this case is going, we hope to do, is to make it clear that a small ambiguity does not mean carte blanche to regulate anything. We also recognize that it's sometimes hard to tell going from the middle of a river or a lake to the shore at what point are we still in the lake or the river and at what point are we now on solid ground. And that transition zone oftentimes is occupied by things like wetlands, but that of course is not what EPA and the Corps want to do. They don't really see any need to have any sort of boundary drawing problem. They think wetlands on their own, even wetlands that are de facto isolated from any other waters could still be regulated. That is in fact actually the case for the Sackets. I mean their lot is bounded by other developed properties and roads, and there's no surface water connection from their lot to any other plausible water, so they are effectively isolated. Nevertheless, EPA and the Corps think that they can regulate their property as waters of the United States. So that's the big differences. Sure, there is some ambiguity, but it's not nearly as ambiguous as EPA and the Army Corps think. But the EPA argues that it needs the power to regulate properties like the Sackets because human activity on nearby lands can have detrimental effect on protected waters like Priest Lake. They point to the Clean Water Act's authorization to regulate land adjacent to protected water. But how far does adjacency extend? That question was raised by Justice Neil Gorsuch in Oral Arguments. Despite the fact that there's a subdivision between this property and the lake, it's still adjacent to the lake. That's the government's view. And it's adjacent? Why? What's the definition of adjacency? I think we are talking about adjacency, and that may not be something that gives you bright-line rules, but it rules out things that are many miles away. Sure, the EPA would take that view? The agencies have told me they do not draw bright-line rules. They do not think 300 feet is unreasonable for adjacency. So how about 3,000 feet? Could be? I don't know the answer to that, Justice Gorsuch. Could it be three miles? I don't think it could be. Could it be two miles? Again, when we start to talk about miles, that sounds too far to be a jit. One mile? One mile, to me. Again, and I see where this is headed, but again, I think one mile. So if the federal government doesn't know, how is a person subject to criminal time in federal prison supposed to know? So the agencies in recognition of this problem make available free of charge jurisdictional determinations as to any property. They also publicize their manuals and make available on websites every jurisdiction. They're manuals that don't tell us the answer. There's no doubt that an important part of water quality is wetlands regulation. I mean, nobody denies that, but the question is, is that something that Congress intended to implement at the federal level in the Clean Water Act? Now, the best way to figure that out is, well, let's look at the text. The text didn't mention wetlands. If the ruling goes this way, there's going to be a lot of people that are afraid that now polluters are just unshackled to dump stuff into bodies of water or, you know, nearby wetlands that could affect bodies of water and we're all going to be worse off for it. What would you say to somebody who has that concern? Just because the feds don't regulate doesn't mean that state and local governments can't regulate. And in fact, there are examples of where when the Supreme Court has limited the scope of the Clean Water Act in prior cases, some states decided afterwards, OK, we're going to expand our own state water quality regulations to capture those areas that are now not federally regulated. Other states have chosen different paths, but it's certainly possible for that to be a supplement for areas where people think federal regulation is needed that may no longer be provided. Images of burning rivers can serve as dramatic reminders of the costs of uncontrolled pollution, but that doesn't mean that the federal government is the best entity to protect natural resources. In Florida, the Army Corps of Engineers has for years overridden local authorities to divert sludge from the state's largest lake into lagoons and estuaries, introducing toxic algae blooms that have wreaked havoc on the local ecosystem and introduced serious health hazards. Ironically, impossible violation of the Clean Water Act, it's supposed to help enforce. Has the Army Corps of Engineers transferred toxic water, toxic water, from Lake Okeechobee to the east through the C-44 reservoir into the St. Lucie Estuary and the Indian River Lagoon into the west through the Colusahatchee River? Yes, sir. We have conveyed water out the system that has contained cyanobacteria and harmful algae blooms. Yes, sir. And the Corps considers that toxic? Yes, sir. It's hard to regulate wetlands federally and still preserve traditional state and local authority over land use. A big, broad federal law is oftentimes not the best way to resolve environmental issues. Not just because it crowds out state and local efforts, but perhaps more importantly, it crowds out private party efforts. When you have the federal government threatening significant fines for any sort of activity that may affect waters and also making it much more difficult to do anything in terms of private conservation. Schiff says he expects a ruling in early 2023. The more than decade-long ordeal has taken its toll on the Sackets, who never completed work on the home. But if their case prevails for a second time in the Supreme Court, they'll not only have established the clear right for citizens to challenge powerful executive agencies like the EPA and court, but also the rights of property owners to improve their lands without exorbitant compliance costs and legal threats from the federal government. Most private property rights violations nowadays happen because of environmentally motivated laws or environmentally motivated lawsuits. And to fight back against that, you have to go straight to the statutes themselves. So a win here to appropriately narrow the scope of EPA's and the Court's Authority under the Clean Water Act would be a great achievement for our multi-decade efforts.