The Clean Water Act (CWA) and the Environmental Protection Agency (EPA) are no strangers to controversy and legal challenges. As KJK has previously written on, Section 401 of the CWA, which focuses on curbing the discharge of pollutants into U.S. navigable waters or Waters of the United States (WOTUS), has been embroiled in debate and lawsuits following the Trump Administrations revisions to that Section. Now, the broader authority of the EPA to regulate WOTUS itself is subject to a serious challenge in the halls of the U.S. Supreme Court.
Sackett v. EPA
The current challenge to the CWA originated 16 years ago in rural Idaho, when the Sacketts purchase a plot of land near Priest Lake with the intention of building a home. As the Sacketts began foundation work, which involved the pouring of gravel and sand, the EPA informed the Sacketts that their home construction had illegally placed fill materials in wetlands subject to regulation under the CWA. The EPA halted the home construction until the Sacketts could obtain a permit to continue from the Army Corps of Engineers.
Sackett v. Environmental Protection Agency I
The resulting litigation forms a tangle of interpretation involving some of the most controversial portions of the CWA. After unsuccessfully seeking a hearing with the EPA, the Sacketts filed a lawsuit challenging the EPA’s authority to regulate the use of their property in Sackett v. Environmental Protection Agency I. The Ninth Circuit Court of Appeals ruled in favor of the EPA, and on appeal to the Supreme Court, the case was remanded back to the District Court of Idaho.
Subsequently, the Supreme Court, in a 4-1-4 opinion, decided a separate question on the EPA’s authority under the CWA in Rapanos v. United States. Justice Kennedy’s sole concurrence took a sweeping view of the EPA’s authority to regulate WOTUS, while Justice Scalia’s plurality offered a much narrower interpretation. Scalia, writing for the plurality, agreed that the EPA has the authority to regulate WOTUS, but insisted that the critical term “navigable waters of the United States” cannot be divested of all meaning. Scalia’s test would permit the EPA authority only over “relatively permanent, standing or flowing bodies of water,” not “occasional,” “intermittent” or “ephemeral” flows. In Scalia’s view, for a wetland to be included in the CWA definition of WOTUS, the wetland must have a “continuous surface connection” with a “water of the United States” that makes it “difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”
Sackett v. Environmental Protection Agency II
The Sacketts continued their fight against the EPA in Sackett v. Environmental Protection Agency II, where the District Court of Idaho applied Justice Kennedy’s test and once against held that the EPA had the authority to regulate the Sackett’s land. With the Ninth Circuit affirming, the Sacketts filed a petition for a writ of certiorari, which the Supreme Court granted.
Now, with hearings well under way in Sackett II, the Supreme Court is faced with the question of revisiting the Rapanos decision to determine whether to adopt Justice Scalia’s much narrower test regarding the authority of the EPA to regulate WOTUS.
Looking Forward
The Sackett II case has captured the anxious attention of builders, farmers, politicians and property owners across the political spectrum. Ohio Attorney General Dave Yost and his counterparts from 25 other states, as well as the Ohio Farm Bureau and several Republican Congress members from Ohio, have signed onto legal briefs urging the Supreme Court to reject the EPA’s arguments and curb authority that detractors see as a vast scheme of federal regulation, only tenuously connected to the legitimate protection of WOTUS.
Conversely, several Democratic Congress members from Ohio and dozens of environmental groups, including Environment Ohio, have signed on in support of the EPA, citing the vast improvement of the nation’s fisheries, wildlife, recreation and drinking water attributable to the CWA.
With the use and potential development of millions of acres of wetlands hanging in the balance, the Supreme Court’s ultimate decision in Sackett II has the ability to change the landscape of property development and environmental protection for decades to come.
While Sackett II remains, as of now, undecided, KJK’s Real Estate and Environmental Law attorneys can help anticipate and navigate current and future changes. Contact Matt Viola (MTV@kjk.com; 216.736.7253), or Jim Scherer at (JJS@kjk.com; 216.736.7296) for more information.