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Friday, August 23, 2019  Spokane, Washington  Est. May 19, 1883
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Guest opinion: Sacketts’ fight against EPA all wet

By Michael Doherty Special to The Spokesman-Review

The Sackett wetland case was extensively covered by The Spokesman-Review and other media as it was heard Jan. 9 by the U.S. Supreme Court. The case should be of great interest to all who cherish clean water and clear lakes, and the ability of regulatory agencies to do their job protecting public resources.

The Sacketts claim their lot is not wetland, yet that is not the question brought before the court. Rather, they argued whether or not the U.S. Environmental Protection Agency has authority to issue Administrative Compliance Orders (including monetary penalties) that cannot be challenged by the landowner prior to a court ruling. The case drew many friends of the court, including corporations and groups with vested interests in nullifying the ability of agencies like the EPA to issue administrative compliance orders. Those filing support briefs include the American Petroleum Institute and GE.

I drove by the property in question for decades and know it is a wetland. It was frequently covered with standing water, soils were saturated, and it was covered with plants common to wetlands in the area. These are the three criteria used to identify wetlands under federal guidelines, and the property meets them all.

Beyond the science, an average person would see it is located at the bottom end of a large drainage and is very wet. Yet they claim the lot is not a wetland. So why did they need to haul fill with dump trucks for three days to prepare it for construction of their house?

The $23,000 price for two-thirds of an acre lot located less than 100 yards from the shore of Priest Lake speaks volumes. The typical price of vacant Priest Lake property is much higher and points to the substandard nature of the property as a home site. As excavation contractors, the Sacketts were amply equipped to fill the lot and prepare it for building.

Though portrayed as such, this is not a case of the Sacketts versus a big government fabricating a case against them. The EPA does not fabricate cases because there are wetland violations all around us, and only the most egregious are pursued. The facts of any case are analyzed and reviewed by managers and attorneys and, if weak, it does not go forward to any enforcement action, let alone to administrative orders with possible legal action. The analysis includes impact to private property rights as well because taking private property without just compensation is illegal and the government looks very carefully at this issue before making any regulatory decisions.

Agencies and regulations exist to protect the public resources we all value. Ask yourself this question: What is a regulatory agency to do when the facts are clear, the law is being violated, and the landowners are uncooperative? Administrative Compliance Orders like the ones in question are typically used by agencies with limited enforcement resources and are the most efficient way to reach resolution.

Environmental laws exist to protect resources under threat of loss to the hands of those who don’t care or don’t know better. Any law is useless without enforcement, and we should quit complaining about regulations and the agencies in place to enforce them. They work for us on behalf of resources that cannot protect themselves. They are not perfect, but can only be improved by the constructive cooperation of the regulated public.

Despite the rhetoric suggesting otherwise, regulatory agencies generally bend over backward to help alleged violators. Even so, a few people fight regulation with ideology as their only defense. The Sacketts claim they love the lake and clean water and would do nothing to endanger the values we all hold dear. If so, the right thing to do would be for them to restore the wetland, and assure its future protection for the public good it provides.

Perhaps the power of government regulators should be tempered. We must trust the Supreme Court will answer that question.

What we all want is preservation of Priest Lake’s famed water quality

Michael Doherty,a retired biologist and regulatory project manager, hasnearly 31 years of experiencein wetland regulation and enforcement with the U.S. Army Corps of Engineers in North Idaho and five other states.
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