By Leisa Boley-Hellwarth
On May 25, 2023 a remarkable decision, in Sackett v. Environmental Protection Agency, was released by the United States Supreme Court. The Court unanimously held that wetlands that do not have a continuous surface connection with a navigable water are not federally jurisdictional. This decision provides a very clear standard that substantially restricts the agencies’ (EPA and Army Corp of Engineers) ability to regulate certain types of wetlands and streams. This is the second time this case was reviewed by the Supreme Court. For over 16 years, the Sacketts and the EPA have been in a knock down drag out over the definition of “waters of the US.”
In 2004, Michael and Chantell Sackett purchased a vacant lot of .63 acres in a rural residential area in Bonner County, near Priest Lake, in northern Idaho. The property is about 300 feet from the lake. Michael and Chantell wanted to build a home, so in 2007, they obtained local permits and began backfilling the lot with dirt. The EPA notified the Sacketts to stop work and restore the site and threatened them with fines of $40,000 per day. The EPA classified the wetlands on the Sacketts’ lot as “waters of the US” because they were near a ditch that fed into a creek which fed into Priest Lake, a navigable intrastate lake.
The couple sued the EPA, but the agency said its compliance order didn’t amount to a final action subject to judicial review. The case eventually went to the Supreme Court, galvanizing a broad coalition of property rights advocates against the EPA. The justices, in 2012, unanimously concluded that the Sacketts were entitled to challenge the compliance order in court.
Apparently no one from the EPA was able to read the room. I’m just a simple country lawyer, but if I was representing a client whom the Supreme Court unanimously ruled against over a procedural issue, I would give pause before I dug in my heels for a fight over substantive matters. Michael and Chantell just wanted to build a house, and the EPA literally made a federal case over backfilling a lot that was near a ditch that fed into a creek which fed into a lake.
After the first ruling by the Supreme Court, the litigation churned on. A federal district court in Idaho, ruled in 2021, that the EPA correctly determined the wetlands on the Sacketts’ property fell under the Clean Water Act’s permitting program. The couple then took the case to the Ninth Circuit that agreed with the lower court.
On Jan. 24, 2022, the Supreme Court agreed to hear the case and determine whether the U.S. Court of Appeals for the Ninth Circuit set forth the proper test for determining whether the wetlands are “waters of the US” under the Clean Water Act.
The dispute touches on a constant source of debate in environmental law: how the EPA defines which wetlands and waterways are covered by the Clean Water Act, and relatedly, how it should interpret the Supreme Court’s famously fractured 2006 decision in Rapanos v. United States, which featured five different opinions. The Idaho district court that reviewed the Sacketts’ case held wetlands on their property were covered by the Clean Water Act under the “significant nexus” test laid out in a concurrence from then-Justice Anthony Kennedy, who provided the key vote in the 1-4-1-decision in Rapanos, in which he agreed with the four-justice plurality that EPA and the Army Corp of Engineers had improperly asserted jurisdiction in permitting decision for Michigan construction projects.
But Kennedy, who was then known as the Court’s swing justice, disagreed with his colleagues on how to determine which cases the federal government can exercise its Clean Water Act authority.
In the years since the Rapanos decision, federal courts have generally favored Kennedy’s “significant nexus” test, which takes a broad view of federal jurisdiction, over Scalia’s narrower definition requiring a wetland to have a continuous surface connection to a regulated water.
On May 25, 2023, the Supreme Court reversed the Ninth Circuit’s ruling. Justice Samuel Alito explained that courts should apply a more stringent test, in which the Clean Water Act applies to a particular wetland only if it blends or flows into a neighboring water that is a channel for interstate commerce.
Alito pointed to the text of the Clean Water Act, emphasizing that the law’s use of the term “waters” generally refers to relatively permanent bodies of water such as lakes and rivers. But when the law is read as a whole, Alito continued, it is clear that some “adjacent” wetlands will also qualify as “waters of the US.” This means that wetlands that are entirely separate from traditional bodies of water will not qualify. But the Clean Water Act will apply, Alito concluded, to wetlands that are “as a practical matter indistinguishable” from “waters of the US” because they have a continuous surface connection with a larger body of water, making it difficult to determine where the “water” ends and the “wetland” begins.
Under that test, Alito explained, the lower court’s ruling must be reversed. “The wetlands on the Sacketts’ property,” he reasoned, “are distinguishable from any possible covered waters.”
While the decision was unanimous and Alito authored the majority opinion, Thomas wrote a concurring opinion that Gorsuch joined. Kagan penned a concurring opinion that Sotomayor and Jackson joined.
The Sackett opinion is 82 pages long. The simple summary is that the ruling dealt a major blow to the regulatory authority of the EPA and the Army Corp of Engineers.
I hope Michael and Chantell finally get to build that house…