Sackett v EPA: A Crisis for the Clean Water Act

By: Brianna Gonzalez Ulloa

 

WASHINGTON, D.C. In 2004, Michael and Chantelle Sackett ecstatically purchased a half-acre arcadian property for $23,000 with the hopes of settling down. Eighteen years later, the Idaho couple would find themselves in front of the Supreme Court with a 14-year-long lawsuit against the Environmental Protection Agency (EPA). 

 

What was once a simple decision made with a family dream in mind is now an environmental case that may finally clarify what can or cannot be protected under the Clean Water Act (CWA). 

 

When first acquiring the plot of land, the Sackett family sought to fill it with both gravel and sand in order to prepare for the construction of their family home. Three years after their purchase, however, the Environmental Protection Agency intervened with the Sacketts’ plans for their land, stating that the property consisted of wetlands. The EPA argued that the lot was under the CWA”s protection for “navigable waters of the United States.”

 

While the Clean Water Act is established to discharge any pollutants from contaminating “navigable waters,” the EPA has yet to clarify what particular lands may be subjected to the regulation.

 

Nevertheless, on Nov. 26, 2007, the EPA issued an administrative compliance order requiring the removal of gravel and sand in order to return the wetland to its original state. The Environmental Protection Agency further warned the family that a possible fine of $37,500 for violation of the Clean Water Act and an additional fine would be imposed for refusal to comply if they continued construction of their home, amounting to $75,000 per day.

 

However, in recent mentions of the case there has been negligence in informing the public of the Sacketts’ prior knowledge and actions concerning the property being a wetland.

 

On May 3, 2007, six months before the agency’s order, EPA officials notified the Idaho couple that their construction may be in violation of the Clean Water Act. At the time, the property had not been confirmed as a wetland, but the Sackett family would later employ a professional wetland scientist who would confirm the state of land. The wetland scientist recommended that the Sackett’s halt any continuing construction and to consult with the U.S. Army Corps of Engineering regarding their next steps. 

 

On May 21, 2007, Chantelle Sackett contacted a Corps of Engineers member who provided her a Section 404 permit application to continue construction on the wetland. The Sacketts did not fill out a permit despite being given the application to do so nor did they attempt to return the land back to its natural state. 

 

Rather, they requested a hearing with the EPA, disagreeing with their claim of having jurisdiction over the Sacketts’ property. The EPA denied this request.

 

The family retaliated by filing suit, arguing that the lot was not under the jurisdiction of the Clean Water Act and that the federal agency deprived the couple of “life, liberty, or property without due process of law.” They also claimed the administrative compliance order was “arbitrary [and] capricious,” in violation of both the Administrative Procedure Act and the Fifth Amendment.

 

On Aug. 7, 2008, the District Court of Idaho dismissed the case, citing lack of subject-matter jurisdiction despite the Sackett family contending for constitutional violation by the agency. As the EPA is considered a federal agency and has not given consent to suit, the district court lacks “jurisdiction over the subject matter of the action.” Dismissal for the case in its entirety was thus required.

 

The Idaho couple continued to assert their argument in federal courts for 13 years following the initial ruling. In court after court, the case was turned down. That is, until the Supreme Court unanimously granted certiorari in 2012, finally providing the Sacketts the right to challenge the EPA in a court of law.

 

On Aug. 16, 2021, the case entered the U.S. Court of Appeals for the Ninth Circuit where the three-judge panel affirmed the district’s judgment in favor of the EPA. 

 

The Ninth Circuit also ruled on the Environmental Protection Agency’s claim that the plaintiffs’ property contained wetlands therefore regulated under the Clean Water Act based on Rapanos v. United States. Rapanos established the significant nexus test to determine whether a wetland or other non-navigable waters are “adjacent” to a traditional navigable body of water. In the case of the Sacketts’ property, the panel determined that yes, the wetland was “adjacent to a jurisdictional tributary,” and thus had “significant nexus” to Priest Lake. 

 

Yet due to the EPA’s lack of clarification in regard to the Clean Water Act’s “navigable waters,” the Ninth Circuit deemed the wetland’s connection to a tributary and wetlands complex, having significant nexus to said traditional navigable water. Though if the court were to strictly adhere to the Rapanos plurality opinion, the Sackett’s wetland must attain a “continuous surface connection” to a traditionally navigable water in order to be regulated under CWA, which it does not.

 

Undeterred by the rulings of court, the Sacketts again petitioned for a writ of certiorari to the Supreme Court, presenting a question of clarification in regard to how far the Environmental Protection Agency’s jurisdiction may extend on land under the CWA and what may be the most proper and accurate test in determining so. 

 

While Sackett v. EPA is largely emphasized as an environmental case, there is the anticipated relief landowners await in hopes that the Supreme Court establishes the Rapanos plurality opinion as law. If the court fails to do so, many property owners who may not be aware of having constructed in wetlands will be fined and could even face criminal charges, though the EPA stated that the latter will likely never occur. 

 

On Oct. 3, 2022, the Supreme Court settled in their new term by listening in on the two-hour oral arguments in Sackett v. EPA. 

 

Arguing on behalf of the petitioners, Pacific Legacy attorney Daniel Schiff began his argument by beseeching the court to enforce a more exacting test in determining a wetland under the CWA rather than utilizing the Rapanos significant nexus test. Schiff defined the test on two notable factors: a wetland may only be regulated as a water if and only if it blends and flows to another body of water, and if said body of water is navigable “for all practical purposes.” Essentially, the neighboring water that the wetland connects to must be used for transporting interstate commerce.

 

Under this “easy-to-administer test,” he argued, “ordinary citizens can use their own eyes to reliably determine whether or not their land is regulated.” 

 

It is important to note that the Sacketts’ wetland property is 300 feet away from Priest Lake yet separated by rows of neighboring houses, so if Schiff”s test were to be enforced, the property would be clear of the Clean Water Act’s regulations.

 

The justices, however, were not convinced by the idea. Many questions were raised in regard to the adjacency of the waters and interpretation of it. In recent years, the Supreme Court has not been kind to environmental regulation cases, but justices both conservative and liberal were skeptical in Schiff”s preferred definition of the term and proposition for a new test. 

 

Making her first appearance on the Supreme Court, Justice Ketanji Brown Jackson questioned Schiff on whether the case itself presented a “federalism issue,” as he had stated, or what she believed to be an issue in “mak[ing] sure that [the Court] maintain the integrity of the waters.”

 

Several justices deferred from having Justice Ketanji Jackson’s question addressed, instead moving back to the issue of defining “adjacency” of wetlands.

 

Schiff was not alone in being bombarded with questions as Brian Fletcher, representing the EPA, also was presented numerous requests for clarification concerning how property owners may go about identifying whether their land violates the Clean Water Act. The questions varied in terms of the distance the wetland must be from a “navigable water” to, once again, the defining term of adjacency.

 

“If the federal government doesn’t know, how is a person subject to criminal time in federal prison supposed to know?” Justice Neil Gorsuch posed at one point during the session. 

 

Since oral arguments in Sackett v. EPA have only just been heard, a ruling cannot be expected until early 2023. 

 

Yet many will await the decision with bated breath, as the case will have considerable impacts on both property owners potentially facing litigation and the EPA’s jurisdiction over environmental issues, from the health of wetlands to climate change prevention and mitigation.

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