The U.S. Supreme Court, in a 5-4 decision, has thwarted efforts by the Environmental Protection Agency (EPA) to impose sweeping federal land use regulations with its expansive interpretation of the Clean Water Act (CWA). The decision in the case of Sackett v EPA revolves around the question of the proper definition of the term “waters of the United States” (WOTUS). Interestingly, all of the judges agreed with the judgment that the assets and actions of plaintiffs Michael and Chantell Sackett were not covered by the CWA.
In the case, the Sacketts had purchased property near Priest Lake, Idaho, and had begun backfilling the land with soil in preparation for building a home. The EPA claimed the property contained wetlands over which the agency exercised its authority under the Clean Water Act which prohibits the discharge of pollutants into “United States waters.” The EPA threatened to impose a fine of $40,000 a day if the Sacketts did not quit.
The majority opinion written by Judge Samuel Alito noted that EPA bureaucrats had “classified the wetlands on the Sacketts lot as ‘United States waters’ because they were near a ditch that fed a creek, which fed Priest Lake, a waterway, intrastate lake.” The EPA’s decision against the Sacketts was upheld by the United States District Court and the 9th Circuit Court of Appeals.
The majority decision leads to the common-sense conclusion that the waters of the United States refer to what, in common parlance, are streams, oceans, rivers and lakes and include adjacent wetlands with a “connection continuous surface” to these waterways. Under the “important link” test developed by Judge Anthony Kennedy in the 2006 decision Rapanos v. United States, almost any body of water, no matter how isolated or impermanent, can be defined by the EPA as part of the waters of the United States and is therefore subject to federal regulation under the Clean Water Act. “By the EPA’s own admission, nearly all waters and wetlands are potentially subject to regulation under this test, exposing a staggering number of landowners to criminal prosecution for such mundane activities. than the displacement of earth”, observes the court in its program of the case.
The program argues that the CWA applies to adjacent wetlands when those wetlands are “indistinguishable” from other properly regulated bodies of water. Adjacent wetlands are covered by the CWA when they have “continuous surface connection with bodies that are ‘United States waters’ in their own right, such that there is no clear demarcation between “waters” and wetlands.
In his concurring opinion, joined by three other justices, Justice Brett Kavanaugh observes that the majority decision “raises issues of federalism and vagueness. The Court suggests that the ambiguities or vagueness of federal laws governing private property should be interpreted in favor of the owner, particularly that States have traditionally regulated private property rights”.
As Justice Clarence Thomas wrote in his concurring opinion, “the Court’s opinion today is holding back a serious expansion of federal authority that has simultaneously degraded the authority of the states and diverted the federal government from its role important role of guarantor of the nation’s great commercial shipping highways into something akin to ‘a local zoning board.'”
Kavanaugh then counters that “the federal government has long regulated the waters of the United States, including adjacent wetlands.” Well yes. But the question is whether the Clean Water Act actually confers this regulatory power. In arguing that this is the case, Kavanaugh argues that the CWA refers to “adjacent” wetlands which would include those that do not have a continuous surface connection to waterways. Therefore, the court’s majority decision inappropriately narrowed the definition of “adjacent” with respect to EPA’s jurisdiction over wetlands.
I’m certainly not a lawyer, but the majority of the Court is absolutely correct in pointing out that the “vague system of rules” devised under the EPA’s expansive interpretation of the CWA has left landowners under uncertain conditions and capricious enforcement. The move should now provide property owners with more legal certainty and certainty when formulating their plans for how they wish to manage and maintain their property.