Fifteen years ago, the Sackett Family purchased a lot in Idaho with plans of building a home. During construction preparations, the Environmental Protection Agency (EPA) served the family with an Administrative Compliance Order, alleging their plans included a discharge of pollutants and violated the Waters of the United States under the Clean Water Act (CWA). The EPA explained that part of the property contained wetlands that qualify as ‘navigable waters’ regulated under the CWA and their failure to obtain a permit and comply with the order could cost the family upwards of $40,000 a day.
If this sounds familiar, that’s because it is. It will be the second time the high court has taken up a case from the Sacketts. The Sacketts sought to challenge the EPA’s determination, though the EPA argued that the compliance order was not subject to judicial review. In 2012, the Supreme Court unanimously agreed that the Sacketts could challenge the EPA’s order in federal court. In 2020, after years of litigation, the EPA decided to rescind the compliance order and argued that the case was moot. However, a lower court judge rejected the argument because the EPA’s decision to withdraw did nothing to address the larger issue of whether the EPA has the authority to regulate the property. The Sacketts are now asking the Supreme Court to revisit the 2006 decision in Rapanos v. United States and to adopt a test that would allow wetlands to be regulated only when they have a continuous surface water connection to regulated waters.
What test will the court use to determine what constitutes “waters of the United States” under the Clean Water Act? As we wrote in the fall, years of uncertainty and confusion on this matter has led to ambiguity for developers, clean energy projects, and even for families like the Sacketts, and there is need for clarity. The lower court ruled in favor of the government, but the Supreme Court will decide whether the Ninth Circuit applied the proper test, and we will be following along once the case is calendared for oral argument next term.
Read coverage from Reuters here: https://www.reuters.com/world/us/us-supreme-court-agrees-consider-limiting-wetlands-regulation-2022-01-24/