The Supreme Court opened the door to a possible revision of wetlands regulations by agreeing to decide whether Michael and Chantell Sackett can build a house in the Idaho panhandle. Justices will hear the case even though the Biden administration is writing a new definition of the upstream reach of the clean water law.
The nonprofit Pacific Legal Foundation, which “defends Americans from government overreach,” said the case would give the Supreme Court the opportunity to revisit a 2006 ruling that said that if a wetland has a “significant nexus” with navigable waters, it is covered by the Clean Water Act. There have been repeated arguments over how to identify that connection.
In 2015, the Obama administration wrote a “waters of the United States” regulation —quickly blocked by court challenges led by farm and home builder groups who argued the rule is overly broad—to specify which rivers, streams and wetlands are covered by clean water protections. The Trump administration replaced it with a much narrower rule, which would be superseded by the Biden proposal. Officials said it would use the definition that was in place before 2015.
Damien Schiff, a Pacific Legal Foundation lawyer, said the Sackett case “is emblematic of all that has gone wrong with the implementation of the Clean Water Act. The Sacketts’ lot lacks a surface water connection to any stream, creek, lake, or other water body, and it shouldn’t be subject to federal regulation and permitting.” The foundation represents the Sacketts in the case.
In accepting the case, the Supreme Court said it would consider whether the Ninth Circuit U.S. Court of Appeals used “the proper test for determining whether wetlands are ‘waters of the United States.'”
In the 2006 case, four justices suggested the clean water law covered wetlands with a “continuous surface connection” to navigable waters. The fifth member of the majority said a “significant nexus” was sufficient. Courts have followed that approach generally and the Obama administration used it was the base of its WOTUS rule.
The Sacketts bought a half-acre plot near Priest Lake, Idaho, in 2004 with plans to build a house on the site. They were told the plot included a wetland and they would need federal permits to build on it. The Supreme Court ruled unanimously in 2012 that the Sacketts had the right as landowners to challenge the EPA’s wetlands determinations. The Pacific Legal Foundation represented them in that case too.
Early this month, the president of the largest U.S. farm group urged members to oppose the Biden approach. “It is critical that this administration understands that we should not need a team of lawyers and consultants just to farm our land,” said Zippy Duvall, president of the American Farm Bureau Federation.