The attorney for an Idaho couple who have been battling federal officials for years over the right to develop their own property asked the Supreme Court on Oct. 3 to rein in the U.S. Environmental Protection Agency’s (EPA’s) power to regulate wetlands.
Chantell and Mike Sackett had started building a new home in Priest Lake, Idaho, when the EPA and Army Corps of Engineers suddenly ordered them to stop all work. The two government agencies stated that the couple needed a federal permit and threatened them with more than $30,000 in daily fines.
The EPA had determined years before that their parcel of land contained wetlands. The Sacketts say their lot lacks a surface water connection to any stream, creek, lake, or other water body, and it shouldn’t be subject to federal regulation and permitting.
Even though water isn’t usually visible on their land, the government claims that, based on aerial photography, the lot is home to a fen wetland. Fens are “peat-forming wetlands that rely on groundwater input and require thousands of years to develop and cannot easily be restored once destroyed,” according to a USDA Forest Service report. Fens are “hotspots of biodiversity” and “figure prominently in nearly all scenarios of CO2-induced global change because they are a major sink for atmospheric carbon,” according to the report.
The Sacketts are asking the Supreme Court to revisit its 2006 ruling in Rapanos v. United States, which was a fractured plurality decision that created uncertainty about the applicable legal standard. Led by the late Justice Antonin Scalia, four of the nine justices found that the Clean Water Act regulates a wetland only if it has a continuous surface connection to another waterway. Then-Justice Anthony Kennedy devised his own legal test, finding that the law covers wetlands that have a “significant nexus” to a larger body of water. The Biden administration favors the nexus standard.
“It’s now going on 16 years since petitioners Mike and Chantell Sackett began construction of a house on a vacant lot in a largely built-out subdivision,” lawyer Damien Schiff told the Supreme Court. Schiff is a senior attorney at Pacific Legal Foundation (PLF), a Sacramento, California-based national public interest law firm that represents the couple.
“Yet their home-building plans remain on hold to this day because EPA remains steadfast in its view that their property contains navigable waters, subject to regulation under the Clean Water Act. But under no plausible interpretation of that term does the agency have such authority.”
A body of water can be regulated under the act, but a wetland falls outside the scope of the law and can only be regulated “to the extent that it blends into and thus becomes indistinguishable from an abutting water,” Schiff said.
The water must also be navigable, which the small stretch of water on the Sacketts’ land isn’t, he noted.
This legal framework is “vastly superior” to the nexus test because it “faithfully vindicates all of Congress’s purposes, not just its water-quality purposes, but also its desire to preserve the state’s traditional preeminence over land and water resources.”
This is an “easy-to-administer test” in which “ordinary citizens can use their own eyes to reliably determine whether or not their land is regulated,” Schiff said.
“[Under this framework,] it’s clear that the Sacketts’ property contains no waters, much less waters of the United States, and so they should be entitled to a declaration that their property is not subject to EPA’s authority,” the attorney said.
Responding to questions from Justices Sonia Sotomayor and Ketanji Brown Jackson, Schiff said: “Everyone recognizes that nonpoint source pollution is a serious water quality issue, but it’s never been disputed that the Clean Water Act doesn’t reach that, which I think emphasizes that the purpose of Congress in enacting the Clean Water Act was not at all costs ‘let’s clean up water quality as much as we can.’ It was a balancing to recognize that some water quality measures, like wetlands regulation, inevitably, as the Sacketts’ case demonstrates, inevitably convert EPA and the Corps into land use administrators.”
According to the EPA, nonpoint source pollution takes place when runoff from rain and snowmelt carries pollutants into waterways such as streams, lakes, rivers, wetlands, and groundwater.
Justice Brett Kavanaugh pushed back against Schiff, saying that he was making legal distinctions that don’t appear in the act.
“Why did seven straight administrations not agree with you?” Kavanaugh asked.
Schiff said, “I don’t presume to know more ... than those seven prior administrations, but what I do know is what is the text that Congress has used, and nothing can supersede that.”
Brian Fletcher, principal deputy U.S. solicitor general, told the court that “everyone agrees that the waters protected by the Clean Water Act include some adjacent wetlands.”
“The narrow but important question presented in this case is whether wetlands lose protection if they’re separated from other waters by a barrier like a berm or a road,“ Fletcher said. ”Overwhelming scientific evidence and essentially undisputed scientific evidence shows that those sorts of barriers do not diminish wetlands’ essential role in protecting the integrity of other waters.”
In 1977, Congress had the opportunity to adopt proposals that sound like what Schiff is arguing, but it refused to do so, according to Fletcher.
“Instead, it adopted Section 1344(g), which includes express textual recognition that the waters covered by the Act include adjacent wetlands,” he said.
Justice Neil Gorsuch asked Fletcher how a person wanting to develop his land, who could face time in federal prison for making the wrong decision, was “supposed to know” that it came under EPA authority.
Fletcher said federal agencies recognize the problem and “make available free of charge jurisdictional determinations as to any property.”
“They also publicize their manuals and make available on websites every jurisdictional—” he said before he was cut off by Gorsuch.
The justice said, “Their manuals, though, don’t tell us the answer.”
The case is Sackett v. EPA, court file 21-454.
