Protecting America’s air, water and lands can come in many forms, a common one being permitting. If you are going to harvest timber, mine ore, boat or fish Idaho’s legendary rivers, camp in heavily used areas, discharge pollution, or any number of things that impact our air, water, lands or wildlife, you need a permit. For the most part, permits are an efficient way to manage access to, and use of, the vast public natural resources that belong to ALL Americans. Some projects are so similar and frequent across a state or the country that agencies create what are called “general permits” to standardize protections and exceptions, and to make the process more efficient.
Say for instance, you want to build a house on a wetland, you need a permit. That way we, as a society, have a way of knowing where public resources are being used and impacted, and can manage the proposal in a way that benefits both people and the environment. To streamline the process, the Army Corps of Engineers developed Nationwide Permit 29, which contemplates people building homes in some wetlands, and provides a consistent set of measures that builders need to follow in order to both build their home, protect public resources and the environment. But when permitting processes are ignored, or even worse, flaunted, the system falls apart, leaving people and the environment at risk.
Case in point: in 2007 Michael and Chantell Sackett began building a home on a wetland next to north Idaho’s Priest Lake. When they were told they were in violation of the Clean Water Act unless and until they secured a permit to fill the wetlands, they balked. So, the Environmental Protection Agency issued an order forcing them to comply with Nationwide Permit 29. The Sacketts and EPA ultimately landed in the U.S. Supreme Court, but not about whether the Sacketts needed a permit. Instead, the Court heard–and agreed with–the Sacketts’ argument that they had the right to go to court to challenge EPA’s compliance order.
Now, the Sackett’s are back at the U.S. Supreme Court, this time challenging whether the wetlands on which they want to build are even wetlands governed by the Clean Water Act at all. Some relevant facts that would seem to cut against their argument: the land on which they want to build is classified as a unique wetland, known as a fen. Research conducted on the hydrology of Priest Lake and its surroundings notes the connection between the lake and groundwater. Notably, numerous other property owners around the lake applied for, and received the necessary permits before building their homes.
None of these facts register as relevant to the Sackett’s argument though, as their primary argument is that the government has no business permitting what they can and cannot do on their land. If only it were that simple. When Congress established the Clean Water Act, it did so “understanding that individuals alone can’t protect the clean lakes and streams on which they depend.” After all, that’s why the Clean Water Act permitting system was created in the first place.