In 2005 Mike and Chantell Sackett purchased less than an acre of land to build a home near to but not adjoining a lake. The lake front homes had already been built. After obtaining building permits from the county, they began the building process by spreading fill material over the lot. Two people from the U.S. EPA and one person from the Army Corps of Engineers appeared and issued the Sacketts an “Administrative Compliance Order” (ACO), alleging the land was a wetland subject to the Clean Water Act jurisdiction and ordered the Sacketts to restore the land to its original condition or face $37,500 in fines per day for violation of the Clean Water Act and undisclosed to the Sacketts, an additional $37,500 per day for violating the compliance order. The Sackett family appealed for a hearing believing that their land was not a wetland, but was denied by EPA and the federal court.
In addition, under an agreement between the U.S. EPA and the
Army Corps of Engineers the Sacketts could not obtain a permit (even if they
wanted to) until the open enforcement action was concluded. The Army Corp of
Engineers insisted the site must be restored to its previous condition to apply
for a permit to place fill material on a wetland. However, under the new
guidance the EPA and Army Corps of Engineers can determine a site is a wetland
subject to the Clean Water Act based on “general scientific literature,” in lieu
of actual case-specific analysis of the water itself, and so the Sacketts found
themselves in a Catch 22.
In 2012 the U.S. Supreme Court unanimously ruled that the
Sacketts may seek pre-enforcement judicial review of ACOs and that their
inability to seek pre-enforcement judicial review of the ACO violated their
rights under the Due Process Clause of the U.S. Constitution. The EPA had
maintained that the ability to issue compliance orders with huge financial
penalties without the ability to seek recourse was an effective means to obtain
compliance. However, the Supreme Court disagreed. The effective scope of the
federal regulations and power had been so far expanded by the 2011 Guidance to include any
conceivable naturally occurring water.
In the latest case, Mike and Chantell Sackett sued,
challenging the EPA's interpretation of Waters of the United States. The Ninth
Circuit Court of Appeals had upheld the district court's opinion, finding that
the Clean Water Act covers wetlands with
an “ecologically significant nexus” to traditional navigable waters and that
the finding by the EPA satisfied that standard.
The EPA had classified the wetlands on the Sacketts' lot as
"waters of the United States" because they were near a ditch that fed
into a creek, which fed into Priest Lake, a navigable, intrastate lake. The EPA
argued that the wetlands on the Sackett property were "adjacent" to
an "unnamed tributary" on the other side of a 30-foot road. To
establish a significant nexus, the EPA combined the Sacketts' lot together with
the Kalispell Bay Fen, a large nearby wetland complex that the Agency regarded
as "similarly situated."
Their argument did not sway a single justice. The Supreme Court found that the EPA had overstepped its authority
in asserting jurisdiction over the Sacketts' property. However, the justices
disagreed on the proper standard for how to determine when the agencies may
assert jurisdiction over an adjacent wetland under the Clean Water Act.
The Clean Water Act of 1972 makes it a crime to discharge
pollutants into the "navigable waters of the United States." However,
what constitutes a "pollutant" or "navigable water" has
been open to interpretation and a series of guidance documents over the years
have continually expanded the definition of “navigable waters of the United
States” until it was defined by the US EPA and the Army Corps of Engineers as:
- Traditional navigable waters
- Interstate waters
- Tributaries to navigable waters and interstate waters
- Seasonal tributaries, steams or creeks
- Wetlands adjacent to any of the above
- And the agency added the “other” category that seems to include everything but swimming pools, fountains, irrigation ditches and stock watering systems.
The majority opinion, written by Justice Alito and joined by Justices Roberts, Thomas, Gorsuch and Coney-Barrett, did effectively narrow this interpretation of the reach of the Clean Water Act. The EPA had argued that the significant nexus test has been and remains sufficient to establish jurisdiction over "adjacent" wetlands. The agencies asked the Court to defer to its understanding of the Clean Water Act’s jurisdictional reach as set out in its January 2023 Waters of the United States rule. The court offered multiple reasons for concluding that the agencies' interpretation is inconsistent with the text and structure of the Clean Water Act.
The Supreme Court was having none of it. The court held that
"EPA's interpretation gives rise to serious vagueness concerns in light of
the Clean Water Act's criminal penalties." Under the significant nexus
test, "almost all wetlands and waters" can be reregulate and the
actions of the EPA could be capricious and targeted. Citing due process
protections, the court was concerned that ordinary people would not be able to
determine what conduct is prohibited under the significant nexus test. The opinion
noted that the Clean Water Act can criminalize even mundane activities and,
therefore, a "staggering array of landowners are at risk of criminal
prosecution or onerous civil penalties." Anyone could be treated as
the Mike and Chantell Sackett were with little real recourse. It has taken 18
years and the monumental costs of two cases argued before the Supreme Court for
the Sacketts to be allowed to build their home.
While the 2023 Waters of the United States rule was not technically
before the court, the majority opinion addressed the EPA's arguments and
refused to defer to the EPA's interpretation of Waters of the United States based
on "significant nexus”(1) in that rule effectively striking down that rule. There
needs to be a reasonable, obvious and consistent standard, for navigable waters
of the United States to protect them from industrial and wastewater discharge.
Though the Clean Water Act was designed to protect our surface water from point
source pollution, wetlands and groundwater also need to be protected.
The proper way to protect the wetlands, groundwater and
seasonal streams that we now understand are so essential to a balanced ecology
and healthy rivers and streams may be
regulations for the application of fill material, land use, non-point source
pollution and other local issues. These are not issues addressed under the
Clean Water Act. These issues need to be consistently and properly addressed on
the state and local level. Something that is often hard to do. The Clean Water
Act may be the wrong tool for a good cause. Congress may need to act to
create the basic framework for laws to protect the sustainability of our water
resources for our future. It is not the court’s job nor the agency’s job to
(1) A prior Supreme Court opinion Rapanos v. United States,
(2006) the court failed to reach a majority, resulting in two different
standards to choose from – the "significant nexus" standard by former Justice Kennedy's concurring opinion and the "relatively
permanent" standard as set forth in the Rapanos plurality
opinion written by the late Justice Scalia. This Court has agreed with the Scalia
standard that to assert jurisdiction over an adjacent wetland under the Clean
Water Act, a party must establish "first, that the adjacent body of water
constitutes 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.'"