On October 3, 2022, the Supreme Court heard argument in Sackett v U.S. Environmental Protection Agency, ___ U.S. ___ (No. 21-454). The Sacketts bought their land in 2004 in a subdivision near Priest Lake, Idaho. They obtained the necessary permits to build a modest three-bedroom family home. In 2007 they began construction only to have EPA officials demand they stop, alleging that their land was protected wetlands under federal jurisdiction. The EPA’s compliance order claimed the construction violated the Clean Water Act (CWA) because their property was a federally regulated “navigable water.”
In earlier litigation, the Sacketts won the right to challenge the EPA’s order in a court of law. When their litigation simply languished in lower courts, the Sacketts’ counsel, the Pacific Legal Foundation, returned to the Supreme Court asking the Court to clarify the scope of the EPA’s regulatory powers under the CWA. At stake is whether the EPA can expand the definition of “navigable waters” – which limits their authority to include any semi-soggy parcel of land.
The question presented in Petitioners’ brief is, “Did the Ninth Circuit set forth the proper test for determining whether wetlands are ‘waters of the United States’ under the Clean Water Act, 33 U.S.C. Sec. 1362(7)?”
The logic of the designation is difficult to follow. The property is across the street from Priest Lake, Idaho. The lake is navigable water. There is no water path from the lake to the Petitioners’ parcel. A thirty-foot wide paved road separates the land and lake from the Sacketts’ property.
The EPA acknowledges that there is no stream, river, lake or similar water body on the parcel. It also acknowledged there is no surface-water connection between the Sacketts’ lot and the wetlands complex on the other side of the road. Yet, EPA and the Ninth Circuit nevertheless concluded that the Sacketts’ lot was similarly situated to those across the street wetlands.
The term “navigable waters” was defined in Rapanos v United States, 547 US 715 (2006). In Rapanos, the plurality defined “navigable waters” as traditional navigable water capable of use in an interstate commerce and non-navigable but relatively permanent rivers, lakes and streams as well as abutting wetlands with a continuous surface water connecting to traditional navigable waters.
The decision in Sackett v U.S. Environmental Protection Agency is expected by June 2023.