SCOTUS to Hear WOTUS Case Property owners challenge EPA’s overreach on navigable waters in wetlands determination. by Jacqui Fatka, Feedstuffs
T
he U.S. Supreme Court has decided to hear a case involving “waters of the United States” that stems from a 2004 order from the U.S. Environmental Protection Agency stopping Michael and Chantell Sackett from building on their land because of the presence of “wetlands.” The Idaho couple were told they needed a Clean Water Act permit to build a home on their private property, even though the lot they were building on lacked a surface water
connection to any stream, creek, lake or other water body. In Sackett vs. EPA, the U.S. Supreme Court will be determining whether the 9th Circuit used the proper tests in determining whether wetlands were “waters of the United States” under the Clean Water Act. In 2004, the Sacketts bought a vacant lot near Priest Lake, Idaho, and obtained local permits to build a home. But when the Sacketts started the construction process, the EPA suddenly ordered them to stop work, and, months later, sent the Sacketts a compliance order claiming the property contained a wetland that could not be filled without a federal permit. EPA prohibited the Sacketts from constructing their home, demanded costly restoration work, and required a three-year monitoring program, during which the property was to be left untouched. The
agency also threatened the Sacketts with fines of up to $75,000 per day if they didn’t obey the order. The order denied the Sacketts the right to use their property, and the agency argued that they had no right to challenge the order in court. Represented by Pacific
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Legal Foundation, the Sacketts argued that it was unlawful to deny them a judicial hearing. They were vindicated when the U.S. Supreme Court ruled in their favor in 2012, confirming their right to contest the order. American Farm Bureau Federation President Zippy Duvall welcomed the court’s decision to offer additional clarity on what constitutes a “waters of the U.S.” under the Clean Water Act. “Farmers and ranchers share the goal of protecting the resources they’re entrusted with, but they shouldn’t need a team of lawyers to farm their land. We hope this case will bring more clarity to water regulations,” Duvall says. Duvall also adds, in light of the action, AFBF called on EPA to “push pause on its plan to write a new WOTUS rule until it has more guidance on which waters fall under federal jurisdiction.” EPA currently has a comment period open until February 7 on its proposed rule. For nearly a decade since, the Sacketts have been in court battling with the EPA over their interpretation of the Clean Water Act, PLF says. In a 2006 PLF case, Rapanos v. United States, the Supreme Court ruled to limit EPA’s regulatory power, but the agency has attempted to sidestep the ruling by issuing guidance documents and creating new rules, like the 2015 Waters of the United States rule and the 2020 Navigable Waters continued on page 68 >>
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