Two federal employees lay murdered on property presumably being developed in violation of the Clean Water Act (CWA).1 Should those federal officials from the Environmental Protection Agency (EPA) have been there? Was the land even subject to the CWA’s Section 404 wetland program? Or possibly, was this yet another version of what confronted an Idaho couple back in 2012, this time in the central reaches of sparsely populated Wyoming? After all, the Idaho couple, Mr. & Mrs. Sackett, argued that their property, just 300 feet from Priest Lake, Idaho, was not a wetland capable of being regulated by the United States Army Corps of Engineers (Corps) and the EPA.2 The Sacketts pressed their cause all the way to the Supreme Court and successfully established they could challenge the EPA’s judgment that they needed a Section 404 permit from the Corps before constructing their residence by the lake.3 But then why, in 2013, would someone murder two federal agents purportedly enforcing the CWA, rather than simply accessing our judicial system?4 Of course, we now know the Sacketts’ property escaped the Section 404 program. That might also be true with the two-acre lot near Dull Knife Reservoir, Wyoming.5 Yet, that result might not have seemed likely in 2013, when eyes focused on Butch Roberson and whether he murdered the agents—or so the reader begins to wonder as the pages turn in Breaking Point, the masterfully penned fiction novel by C.J. Box.6 Breaking Point might be fictional, but not so the Sackett case, nor the story now unfolding again in Idaho, this time on Rebecca and Caleb Linck’s property in Bonner County.7 Whether in the pages of fiction or populating the hidden narratives animating the history of the CWA’s Section 404 program, the nation’s attempt to arrest the loss of wetlands is a story mired in controversy. This brief foray into that controversy attempts to put that narrative in perspective. Part II of this Essay briefly portrays how the Sacketts and the CWA became entangled in a legal dispute that eventually transformed the Section 404 CWA program. Then, Part III explores the emerging narrative surrounding the Section 404 program and how it precipitated considerable political attention. This is followed in Part III by a description of how the narrative captured a majority of the Justices in the Sacketts’ case. Part IV suggests how that majority presented a titled narrative involving the lands adjacent
Sam Kalen (Thu,) studied this question.