Published 2:45 pm Monday, October 3, 2022
A dispute over less than an acre of Idaho land will likely set the course for Clean Water Act regulations across 900 million acres of U.S. farmland.
The legal battle has come to embody a fundamental disagreement over the scope of federal authority over wetlands that’s now to be resolved by the U.S. Supreme Court.
As Associate Justice Brett Kavanaugh acknowledged, the implications go far beyond the specifics of the disagreement in Idaho.
“This case is going to be important for wetlands across the country and we have to get it right,” he said.
Priest Lake, Idaho, landowners Michael and Chantell Sackett are challenging a finding that they need a Clean Water Act permit to build a house on their property. The federal government considers the parcel a regulated wetland, even though a road separates it from a nearby waterway.
About 16 years have passed since the nation’s highest court established the “significant nexus” test to determine whether certain land uses are subject to CWA regulations.
Under that case law, federal permits are required for discharges to wetlands that have a significant nexus to “navigable waters” under U.S. jurisdiction, which can affect earth-moving farm practices.
The nine justices will now consider whether to change that approach after hearing oral arguments on Oct. 3.
According to the U.S. Environmental Protection Agency, it’d be most prudent to leave the current precedent undisturbed.
The Clean Water Act was passed nearly 50 years ago because state government controls over water pollution had proven insufficient, said Brian Fletcher, attorney for the federal government.
“That was Congress’ intent, to comprehensively regulate the waters of the United States,” he said.
The landowners asked the Supreme Court to scrap that precedent in favor of a simpler standard that would limit the federal government’s reach over private property.
Congress never intended to regulate their residential lot in Idaho and similar properties as “navigable waters” under the Clean Water Act, said Damien Schiff, an attorney with the Pacific Legal Foundation libertarian nonprofit who represented the plaintiffs.
“Under no plausible interpretation of that term does the agency have that authority,” he said.
Numerous farm and forestry organizations support the plaintiffs’ position, arguing that the “hopelessly vague” significant nexus test has resulted in “federal tentacles reaching into private land and into local land- and water-use decisions.”
Federal agencies have repeatedly re-interpreted the extent of their CWA jurisdiction under new presidential administrations, “pirouetting over the meaning” of the law, according to farm groups. Such instability is “untenable in a rule that controls, in the agricultural sector alone, the use of nearly a billion acres of land and carries huge civil penalties and jail time for violations.”
Critics consider the Idaho lawsuit an “excellent vehicle” for re-examining the legal precedent, since alleged wetlands on the property are surrounded by barriers to the “navigable waters” of Priest Lake.
Roads and lakefront homes disconnect the parcel from any surface waters, while subsurface flows actually carry water onto the property.
Even so, the U.S. Environmental Protection Agency prohibited the landowners from building a house without a CWA permit, setting off more than a decade of litigation.
The Sacketts argue the statute wasn’t intended to give federal agencies such expansive regulatory power, which should instead apply only to wetlands with a continuous surface connection to navigable waters.
That interpretation came under pointed questioning during the Supreme Court’s oral arguments, including by justices considered to be conservative.
Regardless of who controlled the executive branch, federal authorities have long regulated wetlands separated by berms and dunes from navigable waters, Kavanaugh said.
“Why did seven straight administrations not agree with you?” he asked.
Schiff replied that “nothing can supersede” the law’s text as written by Congress, which in this context means that a wetland must be physically touching the navigable waterway.
He urged the Supreme Court to overturn last year’s 9th U.S. Circuit Court of Appeals ruling, which affirmed the EPA’s conclusion that wetlands on the Idaho property meet the significant nexus test.
Instead of the “significant nexus” test, the justices should rule that a wetland can only be regulated if it “blends into and thus becomes indistinguishable from an abutting water,” Schiff said.
“The test faithfully vindicates all of Congress’ purposes, not just its water-quality purposes, but also its desire to preserve the state’s traditional pre-eminence over land and water resources,” he said.
According to the EPA, natural and man-made barriers do not block the federal government’s ability to regulate wetlands. If they did, water protections could constantly shift along with natural berms and dunes that are shaped by floodwaters.
Restricting federal jurisdiction in this way would also create “perverse incentives” to escape regulation by installing barriers, even if they didn’t affect underground hydrological connections to nearby waterways, the agency said.
While the justices seemed skeptical of the “bright line test” proposed by the plaintiffs, some were also troubled the ambiguous limits of a law that carries such severe consequences.
Associate Justice Neil Gorsuch wondered how people can avoid crossing a line that’s tough for even the EPA to clearly draw.
“If the federal government doesn’t know, how is a person subject to criminal time in federal prison supposed to know?” Gorsuch asked.
The government’s position was backed by environmental groups who fear that restricting the CWA’s authority will degrade water quality and destroy wetlands, undermining the intent of Congress.
Federal authority over wetlands is meant to protect the “chemical, physical or biological integrity” of larger navigable waterways with which they have a significant nexus, according to environmental groups.
To protect the “chemical, physical or biological integrity” of navigable waterways, federal authority must extend to wetlands with which they have a significant nexus, environmental advocates say.
Associate Justice Sonia Sotomayor pointed out that despite the barriers surrounding the property, there’s a direct subsurface connection to Priest Lake.
Such flows are relevant to Congress’ goal of “ensuring the sanctity of our waters and that those things that directly discharged into it would be safe, to keep our waters safe,” she said.
Schiff, attorney for the landowners, responded that Congress was also concerned about “the sanctity of freedom and private property rights.”
Relying on subsurface flows would make the law’s reach “limitless,” since water is commonly found in the ground, he said.
If the Supreme Court establishes a test under which subsurface flows determine if a wetland is regulated, similar disputes over Clean Water Act jurisdiction will continue to arise, Schiff said.
“We will be back in the same place that we have been, with property owners not knowing whether they are regulated,” he said.
