A decade and half of litigation has resulted in federal regulatory changes and the U.S. Supreme Court could soon make a decision about whether Michael and Chantell Sackett may be able to construct a house for themselves on their vacant land in suburban Priest Lake near Northern Idaho.
Since 2007, their lot has been unaltered. Since 2007, their lot has remained untouched. The Environmental Protection Agency told them that their land contained wetlands regulated under the Clean Water Act. According to the agency they need a federal permit for construction. If not, fines as high as $75,000.
The Sacketts filed suit in 2008 after being made aware of these demands. They argue that their landlocked property—which is separated from Priest Lake by a road and a completed row of houses—is not subject to the Clean Water Act. They shouldn’t have to undergo the lengthy, costly federal permitting process to build their home.
Last week the Supreme Court made an announcement that they would be taking up the Sacketts case. It raises hope that the justices will defend their rights, as well the rights of many others who have been left wondering whether or not they fall under the Clean Water Act’s strict requirements.
Damien Schiff from the Pacific Legal Foundation who is representing Sacketts said that Sackett’s case gives the court “the opportunity not just for the court to issue a clearly majority rule but also a rule which can be easily applied by laymen.”
He says that it is unusual for a statute to require substantial expenditures of time, resources, consultants, just to determine if your business is regulated. The maximum civil penalty the EPA can impose daily in non-compliance to the Clean Water Act is under $60,000.
The fact that there remains so much uncertainty about the Clean Water Act’s scope, passed by Congress in 1972, is a sign of how complex legal cases can become.
Sacketts want to know if their property includes “navigable lakes” that are subject to regulation by the law.
It’s an ambiguous term. When the Sacketts purchased their property, in 2004, they had no reason for believing that it was applicable to them. The lot they purchased was a residentially zoned parcel of land that had been mostly developed. They were also granted permits by local officials to construct a house.
Nonetheless, inspectors from the EPA informed the Sacketts that the pools of water they had built were protected waters. They also advised them that they needed to get a permit from Army Corps of Engineers if the Sacketts wanted to continue construction.
The process of obtaining a federal permit can seem daunting. According to Sacketts’ petition, the Supreme Court noted that it takes two years to get a permit from Corps and the cost of consulting is $250,000. According to the suit, even after obtaining a permit, there can be significant changes in the intended operation of the applicant and could limit or prohibit the property’s use.
Sacketts are clearly carrying a heavy burden. Because their property is soggy but not landlocked and has no navigable waters, they claim that it shouldn’t be their burden. They sued the EPA in 2008.
What is navigable water, you ask?
Clean Water Act defines these terms as the waters of the United States including territorial seas. Law further defines the term “territorial waters”, but not “the waters in the United States”.
Federal bureaucrats have a lot to interpret when creating regulations to implement the Clean Water Act. These regulations now cover more than just water that is “navigable” in fact, such as rivers and lakes. They also include intrastate streams and wetlands, which could have an impact on interstate commerce.
Property owners are also facing increasing legal problems due to the expanding reach of Clean Water Act regulations.
The 2006 Supreme Court decision on Clean Water Act, in which a majority vote of justices ruled that certain wetlands are indeed exempt from EPA regulations, is a good example of these disagreements. The court could not reach consensus on the wetlands.
John Rapanos was a Michigan developer who sued the EPA for his attempts to construct a shopping mall in what it claimed were protected wetlands. Pacific Legal Foundation also represented Rapanos.
This 2006 decision is in Rapanos v United States There were limits to what can be considered navigable water. It is not clear what the limits should be.
Antonin Scalia (then-Justice) wrote a plurality opinions, along with three other justices. They found that wetlands only had to be subject to Clean Water Act regulations if there was a continuous surface connection to water bodies. Justice Anthony Kennedy issued a more comprehensive opinion that stated that wetlands could be subject to regulation under the Clean Water Act when they have a “significant relationship” with another navigable body.
It was a mix of conflicting lower court rulings, federal regulations that are constantly changing and all trying to follow the 2006 decision. Rapanos decision. Property owners have not been given any guidance as to when to request permission from the federal government to use their property.
Sacketts argue that Scalia’s plurality opinion should govern. Because their property has no continuous surface connection to any other body of water, the Sacketts argue that they should not be subject to EPA clean water regulations.
The U.S. Court of Appeals, Ninth Circuit, rejected their arguments in an August 2021 decision. Kennedy’s view should prevail, the court ruled. It further ruled that the Sacketts’ property—by virtue of being some 30 feet from a small stream that runs into Priest Lake—had a significant nexus to a navigable water. Accordingly, the federal permit was required for this couple.
The Sacketts made an appeal to the Supreme Court in September 2021 to have their case heard. They argue that the substantial nexus test they have applied to their property is complex and difficult for property owners to grasp. There was a split opinion RapanosAccording to them, muddies only the water.
They also argue that Congress has not clarified its law. This has lead to more confused attempts by regulator agencies to clarify the Clean Water Act.
The Obama administration issued the 2015 Waters of the United States Rule (WOTUS), which is included in this list. This regulation was quickly challenged by developers and property rights owners who claimed it was too expansive and restrictive. The WOTUS was blocked in 27 of the states by federal court rulings, but it was allowed to be implemented in 22 more. (Nobody could determine if the New Mexico rule was applicable.
Trump Administration scrapped WOTUS Rule and created its Navigable Waters Protection rule, which was slightly more narrower in an effort to clean up the many violations of the Clean Water Act. Federal courts also blocked the rule.
The Biden administration is currently in the process of reviving and updating the pre-2015 “waters of the United States” regulations—the same regulations that the Sacketts were accused of violating.
Schiff says that this regulatory saga is yet another reason the Supreme Court should issue a clear decision on federal clean-water act regulations.
Sacketts are seeking closure as well. In 2012, the couple won a Supreme Court case over their right to sue EPA. They are hopeful that the second ruling will grant them permission to finish building their home.
The couple released a statement saying that their property was still vacant and that they were still violating their rights. We hope the Supreme Court will take our case to the Supreme Court and resolve the question of navigable waters once and for all. It’s high time to finish the job we started—to end our personal nightmare and ensure that no other Americans suffer the same predatory government.”
Reason’s video from 2012 on Sacketts’ Supreme Court Challenge.