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Property owners who want to build get a boost against regulators

By David G. Savage, Tribune Washington Bureau –

WASHINGTON — The Supreme Court strengthened the rights of property owners who are confronted by federal environmental regulators, ruling Wednesday that they are entitled to a hearing to challenge the government’s threats to fine them for building on their own land.

The 9-0 decision is a victory for an Idaho couple portrayed by critics of the Environmental Protection Agency as victims of heavy-handed regulators.

Michael and Chantell Sackett were told they faced fines of up $75,000 a day if they failed to restore their residential lot to its natural state.

The Sacketts had bought the lot near Priest Lake in Idaho planning to build a home, but after they had cleared the land, they were told by EPA officials that it was a regulated wetland.

And when the Sacketts sought to challenge this order, they were told by EPA officials, by a federal judge and by the 9th U.S. Circuit Court of Appeals that they had no right to a hearing. Instead, they were told to comply with the order first and then seek a permit to resume building.

Justice Antonin Scalia, speaking in the courtroom, mocked the EPA’s view that the Sacketts’ small lot was protected by federal law as part of the “navigable waters” of the United States. The couple, “never having seen a ship or other vessel cross their yard,” questioned that their lot was a wetland, Scalia said, and they are entitled to a civil hearing before the agency to contest the EPA’s jurisdiction over their property.

Critics of the EPA say the agency’s employees use “compliance orders” and threats of huge fines to force landowners to agree to strict limits on building.

Defenders of the EPA say these orders are crucial in halting pollution or development projects that could cause environmental damage.

Wednesday’s decision in Sackett vs. EPA gives the landowners a new tool for challenging the agency, but it does not change the law on what constitutes a wetland.

In a concurring opinion, Justice Samuel A. Alito Jr. faulted Congress and the EPA for not clarifying the definition of a wetland.

“Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands,” he said. “Allowing aggrieved property owners to sue under the Administrative Procedure Act is better than nothing,” he added, “but only clarification of the reach of the Clean Water Act can rectify the underlying problem.”

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