On January 24, 2022, the Supreme Court of the United States announced that it would hear and grant review for a case of an Idaho couple in a legal battle with the federal government over plans to build a home in their residential neighborhood Priest Lake, Idaho. The sole purpose of this review is to decide once and for all “the proper test for determining whether wetlands are ‘waters of the United States’ under the Clean Water Act.”
Interestingly, considering the current composition of the Supreme Court Justices and the fact that Sackett originates from the Ninth Circuit, an appellate court with a long history of SCOTUS reversals in environmental law cases, there are high chances that the Court would constrain assertions of federal jurisdiction over remote and isolated wetlands.
Nearly 15 years ago, Chantell and Mike Sackett were put on indefinite hold to realize their dream to build a family home. The reason for that is the demand from Environmental Protection Agency (EPA), on pain of immense monetary penalties, that the Sacketts must first obtain a tedious and expensive Clean Water Act permit from the Army Corps of Engineers and then start building their home. This arduous course of action was required because of EPA’s regulations. Namely, the Sacketts’ lot contained wetlands that qualify as “navigable waters” subject to Clean Water Act regulation.
In 2004, the Sacketts bought a vacant lot near Priest Lake, Idaho, and obtained local permits to build a home. As Chantell and Mike Sackett began constructing their home, they received an order to stop all work by the Environmental Protection Agency and Army Corps of Engineers. It was stated that Sackett needed a federal permit to proceed and threatened with fines of up to $75,000 per day if they did not obey one. Months later, the EPA sent the Sacketts a compliance order claiming that the property contained a wetland that could not be filled without a federal permit. EPA not only prohibited the Sacketts from the construction of their home but also demanded costly restoration work. In addition to that, EPA required a three-year monitoring program, during which the property was to be left untouched.
Since 2007, the Sacketts have been in court fighting for the right to use their property. In 2012, the Supreme Court heard the Sacketts’ case, and contrary to EPA’s view, the Sacketts had the right to immediately challenge the agency’s assertion of authority over their homebuilding project. The next step is for the Court to consider whether their lot contains “navigable waters” subject to federal control.
The Sackett case ordeal can be described as symbolic and arises from a long-running dispute over whether the federal Clean Water Act (CWA) jurisdiction extends to wetlands occurring on the Sackett family’s rural Idaho homesite. Damien Schiff, a senior attorney at Pacific Legal Foundation, which represents the Sacketts, says: “The Sacketts’ ordeal is emblematic of all that has gone wrong with the implementation of the Clean Water Act. The Sacketts are delighted that the Court has agreed to take their case a second time, and hope the Court rules to bring fairness, consistency, and a respect for private property rights to the Clean Water Act’s administration.”
In a 2006 PLF case, Rapanos v. the United States, the Supreme Court ruled to limit EPA’s regulatory power. However, the agency issued guidance documents and created new rules, like the 2015 Waters of the United States rule and the 2020 Navigable Waters Protection Rule, thus attempting to sidestep the ruling. Each of the listed changes has been met with lawsuits, and courts have applied the 2006 case unevenly. This resulted in a confusing patchwork of regulations and inconsistency across the country. Now the Sacketts have opened the question to Supreme Court to clarify what EPA can and cannot control under the clean water act.
The Supreme Court reversed the Ninth Circuit and unanimously took the Sackett family side by supporting the fact that the Sackett family had the right to challenge a compliance order from the EPA and direct them to restore wetlands they had filled the property when they started building their home.
The Sacketts winning the battle actually challenged the basis for the EPA’s compliance order, arguing that wetlands were not subject to federal jurisdiction under the CWA. Namely, the Sacketts family declared that it is utterly improper that EPA and the Army Corps asserted jurisdiction over their wetlands by using Justice Kennedy’s “significant nexus” test from Rapanos v. the United States. Instead, agencies should have relied on Justice Scalia’s narrower jurisdictional test from Rapanos, according to which wetlands must have a “continuous surface connection” to a “relatively permanent” “water of the United States” for CWA jurisdiction to apply. Once again, Ninth Circuit took the Sacketts side, and Supreme Court agreed to hear the case.
The Supreme Court’s second grant of certiorari to the Sacketts advocates the possibility the Justices to be poised to make a definitive ruling on which jurisdictional test should be used for the evaluation process of whether wetlands are considered “waters of the U.S.” After the splintered 4-1-4 Rapanos decision issued in 2006 by the Court, the scope of the CWA’s jurisdiction over wetlands and other waterbodies has been the main subject of repeated rulemakings and litigation. All of the rulemakings were against the backdrop of Rapanos’ two competing tests. The unenviable situation and the uncertainty of CWA implementation in the wake of Rapanos can be ended if at least five Justices in the new Sackett case can agree on the appropriate jurisdictional test to apply.
The outcome of the latest Sackett case is almost inevitable. It undoubtedly will have an impact on the new “durable” regulatory definition of “waters of the United States” that EPA and the Corps are currently developing. Moreover, the Supreme Court’s decision could open to debate the rulemaking process since only Congress could change the law by amending the CWA. This fix has evaded Congress for decades, and considering the present political situation; it is even more unlikely to happen.
The Sackett case is a perfect and unique opportunity for the project proponents to highlight the confusion and regulatory inconsistency which resulted from the agencies’ reliance on the “significant nexus” test and the corresponding benefits of a more straightforward test.
The briefing for this case will likely take place in early 2022, and the amicus briefs will be due seven days after the supported party files the brief. Oral argument will probably be held in fall 2022, and the decision is expected to be made at the end of this year or early 2023.