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Reining in the Environmental Protection Agency

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In a nation that values due process, not to mention private property, such treatment is unthinkable," wrote U.S. Supreme Court Justice Samuel Alito to describe the situation Mike and Chantell Sackett faced. On March 21, the U.S. Supreme Court ruled unanimously that the Sacketts would be permitted to challenge an U.S. Environmental Protection Agency (EPA) enforcement action against them. This ruling means the EPA will not be able to use the Clean Water Act to strong-arm Americans without the opportunity for judicial review, and highlights a need to further tighten the federal government's reach.

The Sacketts were building a home near Priest Lake when ordered by the EPA and the U.S. Army Corps of Engineers to stop, restore the land and apply for a federal wetlands permit, or be fined tens of thousands of dollars per day. Concerned about their rights as landowners, the Sacketts sued the EPA, but the agency argued they were not entitled to their day in court until a final agency action was issued. The 9th Circuit Court of Appeals ruled in favor of the agency. The U.S. Supreme Court overturned the 9th Circuit and made clear that landowners may bring a civil lawsuit challenging a federal government order under the Clean Water Act (CWA) prior to a final agency action.

The Sackett's case is not unique. The decision will prevent other property owners from being subject to the dilemma of complying with an unjust decision or face thousands of dollars in fines. Rejecting the EPA's claim that issuance of the compliance order was just a step in the process, the Court determined that the compliance order represents a final agency action for which there is no adequate remedy other than the opportunity to bring a civil action to challenge the issuance of the order.

What does this mean for property owners? Justice Alito explained, "At least, property owners like [the Sacketts] will have the right to challenge the EPA's jurisdictional determination." However, he further explained, "Real relief requires Congress to…provide a reasonably clear rule regarding the reach of the Clean Water Act."

I am glad Justice Alito made this point. I understand the impact of an overly-aggressive interpretation of the CWA. Little good can come from the Administration seeking to expand its authority at the expense of private property rights in contravention of Congressional intent. Property owners deserve clarity so that similar situations do not continue. We also do not need an expansion of the reach of the CWA that puts more Americans in similar messes. Unfortunately, efforts are underway by the EPA to expand the agency's regulatory reach over virtually all waters and ditches. I will continue to oppose this expansion and support legislative efforts to tighten the EPA's reach.

I will also continue to push for legislative remedies when the courts too strictly interpret regulations, as in the case of the 9th Circuit Court of Appeals establishing EPA permitting jurisdiction over forest roads as point sources of pollution. This ruling ruined a long-standing and successful regulatory framework that gave states the responsibility for regulating runoff from forest roads. I urge the Supreme Court to take up the review of this decision and check the EPA's regulatory powers, as it did with the Sackett case.

Everyone wants to protect the resources that make the West a wonderful place to live and raise a family, but private property rights need not be trampled to do it. A better way exists and this ruling is a step in the right direction.


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