(Source: MIRS.news, Published 10/03/2022) Whether waterways and wetlands are protected under the Clean Water Act is in the hands of the U.S. Supreme Court.
The court heard arguments today in a suit filed by Idaho residents Michael Sackett and Chantell Sackett challenging the U.S. Environmental Protection Agency's authority to regulate their land near Priest Lake under the CWA.
"This case is going to be important for wetlands throughout the country and we have to get it right," Justice Brett Kavanaugh said as he questioned why wetlands separated by constructed dikes or barriers, natural river berms, beach dunes, etc. would not be under the CWA as the EPA claims.
The Sacketts' attorney, Damien Schiff, argued for a more stringent test in determining if the CWA applies to wetlands while Deputy Solicitor General Brian Fletcher argued that for 45 years, wetlands have had the CWA protection even if a barrier separates it from a larger body of water.
The Sacketts purchased an undeveloped lot 300 feet from Priest Lake in 2004.
In 2007 they deposited about 1,700 cubic yards of gravel and sand to prepare the land to build a home, but they received a notice from the EPA telling them to stop work because the property contains wetlands and the CWA prohibits dumping pollutants, like rocks and sand, into "navigable waters."
The CWA defines "navigable waters" as the "waters of the United States, including the territorial seas."
Three Supreme Court decisions addressed that definition, United States v. Riverside Bayview Homes Inc., Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers and Rapanos v. United States.
Under the latter ruling, the court defined "waters of the United States" to include "wetlands with a continuous surface connection" to a "relatively permanent body of water connected to traditional interstate navigable waters."
Schiff argues that the Sacketts' property contains no water so they should not be subject to EPA's authority.
The EPA arguably disagrees, as the agency ordered the Sacketts to restore the land or face a fine of more than $40,000 per day. The Sackett couple responded with a lawsuit in 2008.
Justices questioned the importance and definition of adjacency – which the EPA interprets to mean bordering, contiguous or neighboring water, including those separated by constructed dikes or barriers, natural river berms, beach dunes et cetera.
Fletcher said the Biden administration is currently finalizing a new federal rule, but he declined to tell the justices additional details, noting that "what's coming in the forthcoming rule … isn't issued yet." He noted that it is expected by the end of the year.
It is the second time the case has come before the Supreme Court, after the Ninth U.S. Circuit Court of Appeals ruled in 2021 in favor of the federal government.
