It already has been 12 years since Michael and Chantell Sackett, fighting the Environmental Protection Agency’s claim that their suburban home building site in Idaho was a protected “wetlands,” were at the Supreme Court for the first time.
That was when the federal bureaucracy demanded that they didn’t even have the right to challenge the EPA’s verdict in court.
They won, and they did, but now they’re back after lower courts agreed that their smaller-than-an-acre parcel near Priest Lake is, in fact, wetlands, even though it’s not wet, it’s not connected to navigable waters and there are already homes on adjacent lots.
Arguments were heard in the Supreme Court on Monday, as the court opened its new term. A report at Scotusblog said Damien Schiff, a lawyer for the couple, “urged the justices to adopt a more stringent test to determine whether the [Clean Water Act] applies to a particular wetland. Under that test, Schiff explained, a wetland can be regulated only if it blends or flows into neighboring water, and that water must be a ‘water of the United States – that is, a channel for interstate commerce. Such a test, Schiff argued, is most consistent with the text of the CWA, and it is easy to administer: ‘Ordinary citizens,’ Schiff stressed, ‘can use their own eyes to determine whether their property is a wetland covered by the CWA.”
The report said that Deputy Solicitor General Brian Fletcher argued for the EPA that it doesn’t matter whether the agency’s designated “wetlands” are connected to bodies of water or not.
The report explained at the end of the arguments, “the justices appeared torn between wanting to protect the nation’s waters and the desire to have more clarity for property owners, who can face stiff fines for violating the Clean Water Act.”
The law bans the discharge of pollutants, “including rocks and sands,” into “navigable waters,'” and that’s where the agency’s agents targeted the Sacketts. They had had a small amount of fill delivered to their property so they could build their house.
But that dry land, the EPA ordered them to acknowledge, was “wetlands” connected to “navigable waters.”
The legal war actually began in 2007, when the EPA, without advance notice, ordered them to restore the land to its native state, allow the EPA to monitor them, and much more.
Justice Neil Gorsuch pointed out that the Sacketts’ property is separated from Priest Lake by a road and a row of houses, so he wondered how a landowner is supposed to know whether his property is close enough to the larger body of water that the CWA applies.
The circumstances of their fight actually started in 2004.
“The Sacketts’ ordeal is emblematic of all that has gone wrong with the implementation of the Clean Water Act,” said Schiff, a senior attorney at Pacific Legal Foundation, at that time. “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 Sacketts are delighted that the court has agreed to take their case a second time and hope the court rules to bring fairness, consistency, and respect for private property rights to the Clean Water Act’s administration.”
Even presidents have been unable to agree on a resolution to the fight.
The Sacketts actually had their local building permit for the lot and had started preparing it for a modest three-bedroom home in the partially built-out subdivision. The dry land on the lot has a sewer hookup and is zoned for residential construction. Homes already exist on nearby lots.
