BREAKING NEWS: On May 25, the U.S. Supreme Court ruled against the EPA in a wetlands regulation challenge, limiting federal power over wetlands and boosting personal property rights over clean water.
The case (Sackett v. Environmental Protection Agency, No. 21-454) stemmed from Chantell and Mike Sackett’s 2004 purchase of an undeveloped plot of land about 300 feet from Priest Lake, one of the largest lakes in Idaho, near the U.S.-Canada border. In 2007, the couple began preparing construction of a home on it. But after placing sand and gravel fill on the lot, the EPA issued an administrative compliance order stating the property contained wetlands protected by the 1972 Clean Water Act (CWA) and that they needed a permit to build, which they had failed to obtain.
The ruling, in which the justices unanimously agreed on the outcome but differed on the legal reasoning, concluded that the Sacketts’ land does not fall under jurisdiction of the CWA, so the couple does not require a federal permit to build on the property. The decision ends a battle between the Sacketts and the federal government which began in 2007 when the EPA issued a compliance order against the couple, threatening tens of thousands of dollars in fines per day for continued construction of the Sacketts’ home in Idaho.
In reaching its broader legal conclusion, the Court ruled on a 5-4 vote in an opinion authored by Justice Samuel Alito that the CWA’s use of “waters” refers only to “geographic[al] features that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes’ ” and to adjacent wetlands that are “indistinguishable” from those bodies of water due to a continuous surface connection. To assert jurisdiction over an adjacent wetland under the CWA, a party must establish “first, that the adjacent [body of water constitutes] … ‘water[s] of the United States’ (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”
Justice Brett Kavanaugh joined the Court’s three liberal justices, concurring in the overall judgment, but disagreeing with the majority’s new test. “By narrowing the act’s coverage of wetlands to only adjoining wetlands, the court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States,” Kavanaugh wrote.