EPA Is Holed at the Waterline
The Supreme Court decision in a wetlands regulation dispute vindicates property rights against intrusion by federal bureaucrats.

In the latest signal that the Regulatory State is in deep water, the Environmental Protection Agency received a unanimous rebuke by the Supreme Court in a wetlands regulation dispute. The decision in Sackett v. EPA vindicates property rights against intrusion by federal bureaucrats. Plus, too, it rejects the tendency of bureaucrats to misinterpret laws to seize more power for themselves. It will induce among DC regulators a sinking feeling.
The decision is a victory for the Sacketts, an Idaho couple whoâve been battling bureaucrats for almost 20 years to build a home on their land near Idahoâs Priest Lake. While work was under way, the EPA ordered them to stop âbecause their property contained protected wetlands,â violating the Clean Water Act. The EPA said their land was across a road from a âtributaryâ that âfeeds into a non-navigable creek, which, in turn, feeds into Priest Lake.â
The acrobatics needed to put this property under the thumb of federal regulators stem from the EPAâs too-broad reading of the Clean Water Act, Justice Samuel Alitoâs majority opinion, joined by four other justices, says. The EPA, for its part, contends that land like the Sackettsâ is subject to regulation under the Act if they contain âadjacent wetlandsâ with a âsignificant nexus,â as the agency put it, to âtraditional navigable waters,â the decision notes.
Wouldnât you know it, âalmost all waters and wetlandsâ are âpotentially susceptible to regulationâ under this EPA view, Justice Alito points out. This interpretation of the law, Justice Alito adds, is so wide-ranging that âif viewed in isolation, it would extend to all water in the United States.â It would also place âa staggering array of landownersâ at ârisk of criminal prosecution or onerous civil penalties,â he notes.
So, Justice Alito asks, âWhat are landowners to do if they want to build on their property?â The EPA would have property owners ask the Army Corps of Engineers, he explains, âfor a jurisdictional determination.â Thatâs âa written decision on whether a particular site contains covered waters.â For a nation whose founding was inspired by John Lockeâs idea of an innate right to âlife, liberty, and property,â this amounts to a galling intrusion by Uncle Sam.
Worse, Justice Alito adds, âthe Corps maintains that it has no obligation to provide jurisdictional determinations,â and even if it deigns to do so, âa property owner may find it necessary to retain an expensive expert consultantâ to persuade the regulating engineers of the agency. The icing on the cake is that âthe EPA admits that the Corps finds jurisdiction approximately 75 percent of the time,â Justice Alito observes.
No wonder, Justice Alito concludes, âMany landowners faced with this unappetizing menu of options would simply choose to build nothing.â So the majority, going back to the text of the Act, is scaling back the EPAâs authority to intrude on landownersâ rights. They conclude the Act âextends to only those wetlandsâ that are âas a practical matter indistinguishable from waters of the United Statesâ â meaning, âtraditional interstate navigable waters.â
The unanimity of the decision in favor of the Sacketts, though, belies a split as the courtâs three liberals, joined by Justice Brett Kavanaugh, agreed with the outcome but not with the reasoning. And Justice Clarence Thomas offered his own rationale, joined by Justice Neil Gorsuch, for opposing the EPAâs intrusions as a symptom of a larger misreading of the Constitutionâs Commerce Clause. He would dial back federal regulation even further.
âStates enjoy primary sovereignty over their waters,â Justice Thomas explains. The Commerce Clause, he explains, âvests Congress with a limited authorityâ over such waters serving âinterstate commerce.â That power has since the New Deal metastasized and Uncle Sam now acts as âa local zoning boardâ for land across the country, Justice Thomas quips. Sackett offers a clarion call to reverse this overreach by the federal leviathan.