Idaho Couple Challenges Power of EPA to Say They Can't Build Home on Their Own Land

By Philip Shepherd | January 6, 2012 | 12:32pm EST

Michael and Chantell Sackett. (AP photo)

( – In 2005, Michael and Chantell Sackett were working toward what many American families work toward, their own home on their own land, until the U.S. Environmental Protection Agency (EPA) halted their plans by declaring it a “wetland.”

On Monday, Jan. 9, the Sacketts and their attorneys will ask the justices of the U.S. Supreme Court to not only restore the right to use their own land – but to break the absolute power the EPA has over protected wetlands.

The Sacketts, small business owners in Idaho, located a lot in the northern part of the state in a town called Priest Lake. According to court documents, the lot is less than an acre and is just 500 feet from Priest Lake on its west side. It is separated from the lake by a house and a road and has no standing water or any hydrologic connection to Lake Priest or any other body of water.

There are houses to the north and south of the lot.

The lot is located in an established residential area – a platted subdivision – with the required water and sewer hookups.

In 2005, after performing the necessary due diligence, the Sacketts purchased the lot for $23,000. They sought and obtained the needed permits to begin building their new home.

According to the Sacketts, shortly after they began laying gravel for construction, the EPA came onto the property and issued a compliance order without any notice, telling them that the land had been declared a “wetland,” and ordered them to restore the land to EPA’s liking or face $37,500 per day in fines.

The Pacific Legal Foundation, a nonprofit public interest law firm representing the Sacketts, says the couple asked the EPA numerous times for a written statement describing what they had done that was in violation of EPA regulations. Finally, after seven months, the Sacketts received a letter detailing the violation that the EPA claims they committed.They say they were unable to locate their property on the EPA’s online wetland inventory.

Following the EPA “compliance” order, the Sacketts hired a private engineer who, following an inspection of the property, provided a report stating that the property is not wetlands.The EPA did not relent.

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The Sacketts filed suit in 2008 seeking to establish that EPA “wetlands” designations are subject to judicial review. Both the federal district court and Ninth Circuit Court of Appeals ruled in favor of the EPA.

The court held that the Sacketts could not seek judicial review of the EPA “wetlands” designation until after they had restored the land to its original status and had applied for and had been denied a wetland permit.

The wetland permit application is much more expensive and time consuming than local permits.

On Monday, the issue will go before the Supreme Court.

“Should EPA be a law unto itself, without having to answer to the courts and the Constitution?” Pacific Legal senior staff attorney Damien M. Schiff asked. “We believe the answer is, clearly, no.”

But according to the Justice Department’s filings in the case, once the EPA has designated a piece of property as being protected “wetlands,” the Clean Water Act requires that a wetland permit be obtained before a “new use” of the wetland is allowed.

Because the order “imposed no new legal obligations beyond those to which petitioners were already subject under the (Clean Water Act),” the Justice Department argues that the order “is not subject to immediate pre-enforcement review” because the law already provides for “adequate procedural safeguards and review.”

Oral arguments on the case are set for Jan. 9.

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