All Animals Are Equal, but Some Animals Are More Equal…

By Susan Carleson
Sunday, May 20, 2012

Note: This column was coauthored by the ACRU Legal Team.

Just in case anyone needs any more surprises – liberal hypocrisy has again been unearthed in – of all places – Washington D.C.!

Last August, the Army Corps of Engineers denied the District of Columbia a permit as part of a $1.5- billion Southwest Waterfront redevelopment project to begin constructing high-rise, luxury townhouses, a yacht club and other buildings on piers in and on the Washington Channel – a congressionally-designated navigable water of the United States.

The Corps stated that under existing law, including the Clean Water Act (CWA), it was required “to regulate construction activities and discharges of dredged and/or fill material in navigable waters.”

Based on its CWA concerns and adverse impact on marine navigation, the Corps stated that: “At this time, the Corps does not have the administrative authority to approve the project as proposed without specific Congressional action to dissolve the federal interest.”

Not to fear, Senate Committee Chairman Joseph Lieberman (I-Conn.) quickly sailed to D.C.’s rescue. He reported H.R. 2297 (a bill originally sponsored by Del. Eleanor Holmes Norton [D-D.C.] in the House) out of his committee and amended it on the Senate floor without objection to remove the Corps’ authority over the Washington Channel. Like a shot, the Senate then passed the bill by voice vote and sent it back to the House as amended to rescue D.C.’s $1.5-billion project.

Interestingly, all of this occurred quietly on a single day, March 29, 2012 – just eight days after the Supreme Court released its opinion in Sackett v. EPA, a case epitomizing arrogant exertion of police power by federal bureaucrats against innocent American citizens. Here's what happened to the Sacketts – in contrast to how Congress is treating D.C.

Several years ago, Michael and Chantell Sackett purchased a half-acre lot in a built-out residential development near Priest Lake, Idaho to build a three-bedroom retirement home. Local authorities had zoned their lot for residential construction and provided a sewer hookup.

Having obtained all required local building permits, the Sacketts in the spring of 2007 employed contractors who began moving earth and putting down gravel to prepare the site. However, the Sacketts quickly received a Compliance Order from the Environmental Protection Agency (EPA) demanding that they stop construction. The EPA ruled, without prior notice,that the homebuilding site was a wetland and that the Sacketts violated section 402 of the Clean Water Act (CWA) by illegally dumping “fill materials” into wetlands under the EPA’s jurisdiction.

Somehow, the EPA had found that moving earth around in a residential neighborhood on dry land remote from any “navigable waters” involved “the discharge of a pollutant” (i.e. clean fill dirt and gravel) into the “navigable waters” of the United States.

It got worse. The Sacketts soon discovered that there was nowhere they could go to challenge the EPA’s Compliance Order without incurring costs and delays suited to a major industrial enterprise, or inviting bankrupting fines and even criminal penalties of up to $75,000 a day.

Not only did the EPA demand that the Sacketts immediately cease construction of their home, but that they finance costly restoration work; remove all fill material, replant, and do anything else required to restore the property to its prior condition. After that, they would have to endure a three-year monitoring period during which they had to leave their residential land entirely untouched.

The Sacketts first sought a hearing before the EPA, but the agency ignored them. The couple then filed suit in federal court – only to have the District Court grant the EPA’s motion to dismiss the case. The Sacketts ultimately had to take their case all the way to the U.S. Supreme Court. There, they won when the Supreme Court ruled on March 21 that they were entitled to at least challenge the EPA’s Compliance Order by returning to the federal District Court in Idaho, where they can point out that building a home on dry land in a built-out residential subdivision does not involve any discharge into the navigable waters of the United States.

Back in D.C., the EPA has the authority to apply the same aggressive CWA enforcement powers against the $1.5-billion waterfront development project, but it has not raised a whimper even though that project involves building townhouses, not near or beside, but actually out over Congressionally-designated navigable waters. D.C.’s government also raises millions of dollars each year by charging shoppers five cents for every plastic shopping bag -- ostensibly to keep the bags from entering nearby rivers and waters, including the Washington Channel itself.

So, on the one hand, we have D.C. wanting to build luxury high-rise residences, a yacht club and multi-purpose buildings on piers out over the waters of an 80-year-old congressionally authorized Federal Navigation Project and the U.S. Congress speeds to the rescue to strip the Army Corps of Engineers of its authority to delay the project – despite the real potential for water pollution.

On the other hand, when average private citizens such as the Sacketts want to build a modest, single-family house on dry land that does not border navigable waters, they have to go all the way to the Supreme Court to claim their right as Americans to have their day in court just to challenge the EPA’s absurd contention that their homebuilding effort will pollute the navigable waters of the United States.

Congress may have wised up last week when it pulled this D.C. rescue bill from the Suspension Calendar, which is used to pass “non-controversial” legislation. Unfortunately, it was not pulled because of the hypocrisy in how the federal government enforces the Clean Water Act against Americans trying to build a family home compared to the government’s treatment of large corporations and cities trying to build luxury high-rise townhouse on piers actually out over the water, but because Congress is concerned that the bill as modified by the Senate may constitute an “earmark” for D.C. in violation of the House’s ban on earmarks.

Earmark or not, doesn’t every American who has been or will be bullied by the EPA and the federal government as the Sacketts have been deserve to have Congress ride to their rescue as well?