SafeX Pro Exchange|The Fate of Protected Wetlands Are At Stake in the Supreme Court’s First Case of the Term

The SafeX Pro Exchangefirst case on the Supreme Court’s fall docket is the much-anticipated Sackett v. Environmental Protection Agency (EPA), which challenges the EPA’s authority to regulate certain wetlands under the Clean Water Act. 

Oral argument in the case on Monday was also the first time that Justice Ketanji Brown Jackson, newly appointed by President Joe Biden, appeared on the conservative-majority bench.

Afterward, on a cold and gloomy day, Damien Schiff, the lawyer for the petitioners, Michael and Chantell Sackett, appeared on the steps of the court, flanked by fellow lawyers.  

He said that the EPA’s definition of what constitutes wetlands under the Clean Water Act was  too broad. “It makes it hard to understand, hard to apply, and results in complications for people like the Sacketts, who are trying to build a house. And now they’re told they’re violating federal law,” said Schiff, a senior attorney at the Pacific Legal Foundation, a conservative anti-regulatory group. “I think the court recognizes that wetlands are important for water quality, and that the statute does regulate wetlands to some degree. But the devil is in the details: how many wetlands,” he said.      

The Sacketts purchased a property in northern Idaho near Priest Lake in 2004 to build a home. In 2007, they obtained building permits from the county and began construction. Soon thereafter, EPA employees inspected the site and asked the couple to stop the construction work because the site contained wetlands and needed a permit from the U.S. Army Corps of Engineers, the agency charged with permitting in such cases. 

The couple refused to comply with EPA’s directive, prompting the agency to issue its initial compliance order in November 2007. The agency concluded that the property contained wetlands subject to Clean Water Act regulations and that the Sacketts had illegally placed fill material on the property. The couple was ordered to remove the material and undertake restoration work by the end of April in 2008. Failure to comply would result in tens of thousands of dollars in administrative and civil penalties, they were told. 

The couple instead sued the EPA and sought a judicial review of whether the agency correctly determined that their property contained wetlands under the Clean Water Act. The case has since been winding through various tiers of the judicial system and has arrived in the Supreme Court, seeking a narrower definition of what constitutes wetlands under the Clean Water Act. 

Kelly Moser, senior attorney at the nonprofit Southern Environmental Law Center, said that the industry-backed coalition behind the Sacketts want a narrow definition of “waters of the United States” so that requirements of the Clean Water Act do not infringe on the rights of property owners.

When Congress enacted the Clean Water Act, she said, they gave the act the broadest constitutional interpretation necessary to protect the integrity of the nation’s waters. “And the agencies have been applying their scientific judgment for decades,” she said.

“The Sacketts and their industry-backed partners are asking the court to adopt a test that has never been articulated by any court,” Moser said, “and would completely undercut the sole objective of the Clean Water Act, which is to restore and maintain the physical, chemical and biological integrity of the nation’s waters.”

The arguments in support of the petitioners have stated that the EPA applied the Clean Water Act inconsistently, and that the process is costly and cumbersome for property owners. Attorneys representing the Sacketts asked the court to clarify the ambiguity over jurisdictional waters.

“Without expert analysis or Agency clarification, no property owner could possibly know whether a trickle through her property implicates the CWA, and no field agent could hope to apply the regulation consistently,” argued Southeast Legal Foundation, a pro-industry national nonprofit, which filed an amicus brief in favor of the Sacketts in October 2021. 

The foundation argued that complying with the law should not be this hard, and that waters of true federal significance should not be hard to define. “Properties should be bought, sold and developed without undergoing months or even years of expert analysis,” the foundation said in its brief. 

When the Sacketts bought the property more than 15 years ago, the Southern Environmental Law Center’s Moser said, the previous owners had consulted the Corps of Engineers who determined that the property was on wetlands. 

“From our point of view, they should have known there were wetlands on site,” she said. “And rather than asking the Corps for a jurisdictional determination or getting a permit from the Corps, the Sacketts filled in the wetlands with gravel and dirt,” prompting the EPA’s enforcement action.

The EPA determined that the property fell within the scope of “waters of the United States” because it is a wetland adjacent to a navigable body of water, namely Priest Lake. According to the EPA, the Clean Water Act established federal jurisdiction over such navigable waters. , 

The Sacketts argued that their property is not adjacent to Priest Lake, according to the court documents, because it is separated by dry land and a road and a developed residential neighborhood, and also said that the EPA’s definition and regulations for “adjacency” were erroneous.

Moser said that plaintiffs are now proposing that wetlands can only qualify as waters of the United States if you can float a boat on it, or that it is next to a body of water such as a lake or a river, and it has to be so close and touching that body of water that it is hard to tell where the water ends and the wetland begins. It is an extremely narrow definition of what should be considered wetlands, she said. Every court that has weighed in on this matter previously, said Moser, agreed that it depends on the ecological judgment of the agencies to determine whether a wetland significantly affects waters of the United States.

The Southeast Legal Foundation, in its amicus brief, called instead for the “narrowest” interpretation of the law. “The reach of the Clean Water Act is notoriously unclear. Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the Act,” the foundation argued, quoting an earlier observation by Justice Alito, a conservative-leaning justice on the bench. The “narrowest” interpretation of the law, the foundation said, would be “most restrictive of federal government authority.” 

Sam Sankar, senior vice president for programs at Earthjustice, said that the EPA was already in the process of rulemaking to further clarify what is covered under the Clean Water Act. 

“Under normal circumstances, the Supreme Court would never try to decide an issue when an agency is trying to provide guidance on that very same issue, especially in the area of environmental regulation, which is inherently very scientific and complicated,” Sankar said. 

The Southeast Legal Foundation, on the other hand, argued that the timing of the court’s review “could not be more optimal.”

“Any later hearing would come too late—after the costly rule making, after the protracted litigation, and after countless landowners invest hundreds of thousands of dollars merely to understand what rules apply to their properties,” the foundation said. It asked for the court’s direction to rein in the federal overreach, premised on the broad interpretation of “Waters of the United States”  that it said had unfolded over the last few decades. 

Jon Devine, senior attorney and federal water policy director at the Natural Resources Defense Fund, a national nonprofit, said that the country was losing wetlands by hundreds of acres a year when the Clean Water Act was passed. That has now been substantially reduced over the act’s almost 50-year history.

“Justice Jackson rightly looked at the single objective of the Clean Water Act which is to restore and maintain the chemical, physical and biological integrity of the nation’s waters,” he said, referring to Jackson’s comment during oral argument. “That calls for a science-based and inclusive view of what wetlands are protected by the law.” 

Devine added that the Trump-era environmental rule that sharply reduced federal powers to police water pollution was estimated to eliminate protections for about half of the wetlands, streams and marshes in the country. “If the Sacketts were to prevail, it would be that regulation on steroids,” Devine said.

A decision in the case, closely watched because of its significant implications for wetlands protections and other enforcement activity, could come any time this fall, although some court observers warned that a decision may not come until some time next year.