Amicus Brief Urges Supreme Court To Avoid “Takings” Issues When Interpreting Scope Of Clean Water Act

April 14, 2022

The U.S. Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers impose onerous Clean Water Act permitting requirements in connection with discharge of dredged or fill material on private property that those agencies deem wetlands encompassed by “the waters of the United States”—the vague phrase that Congress chose to define “navigable waters” subject to the Act’s pollutant discharge prohibitions. For decades the Supreme Court, as well as EPA and the Corps, have struggled to devise a clear, workable test for determining when a putative wetland is part of “the waters of the United States,” and thus subject to Clean Water Act permitting requirements. In Sackett v. EPA the Court has agreed to address this question again.

The Supreme Court Will Decide Which “Wetlands” Are Subject To Clean Water Act Permitting Requirements

The Petitioners are Idaho property owners who wish to construct a residence in a  built-out Idaho subdivision. After they began excavating and backfilling their property, which is not physically connected to a navigable body of water, EPA notified them that their property is a “wetland” subject to Clean Water Act regulation. An administrative compliance order directed them to restore their property to its natural state or incur substantial financial penalties. It is well settled that a “regulatory taking” in violation of the Fifth Amendment can occur where federal regulation deprives a property owner of any economically viable use of private property.

The Atlantic Legal Foundation, joined by Conservatives for Property Rights and the Committee for Justice, has filed an amicus brief authored by Capital Appellate Advocacy founder and ALF Executive Vice President & General Counsel Larry Ebner along with ALF Advisory Council member Nancie Marzulla of Marzulla Law, LLC.

The amicus brief argues that the Court should avoid any statutory interpretation of “the waters of the United States” that has the potential for raising concerns about the regulatory “taking” of private property without just compensation in violation of the Fifth Amendment.  More specifically, the brief argues that (i) Clean Water Act regulation of wetlands can raise Fifth Amendment takings concerns, and (ii) when interpreting the breadth of the statutory phrase “waters of the United States” as to wetlands,  the Court should apply the canon of constitutional avoidance.