The U.S. Supreme Court in Sackett v. EPA has finally provided some clarity on one of the most basic questions in environmental law: what waters are regulated under the Clean Water Act?
For decades, the Environmental Protection Agency and the U.S. Army Corps of Engineers have tried to claim that almost every bit of domestic water imaginable is a federally regulated water.
Before Sackett, the Court had twice struck down this overreach. This new opinion makes it three strikes. The justices unanimously agreed that wetlands on an Idaho property owned by Michael and Chantell Sackett don’t constitute a federally regulated water, or a “waters of the United States” under the Clean Water Act.
While there was disagreement on the reasoning, a majority of the justices have helped to establish a test that mirrors Justice Antonin Scalia’s plurality opinion in Rapanos v. United States (2006).
This starts with what is meant by “waters.” Citing Rapanos, the majority explains that “waters” are “only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic[al] features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’”
In other words, a “water” is exactly what most people would think of when they think of a body of water.
But what wetlands are regulated? Once again, the majority points to Rapanos. The Court explains that regulated wetlands are those wetlands where there is “a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between ‘waters’ and wetlands.”
If the waters and wetlands can be distinguished, then the wetlands can’t be regulated under the statute. And even if there is no clear demarcation, the wetland must be connected to a water that is a “relatively permanent” water as described, which itself must be connected to traditional interstate navigable waters.
This test helps to provide some bright line rules for property owners so they can understand what is actually going to be regulated. For property owners like the Sacketts who simply want to move some dirt and build a home, they will have a better sense of whether the federal government will require them to secure permits.
Unfortunately, property owners have had a good reason to feel scared to engage in ordinary activities, like homebuilding and farming. Knowing whether a property contains a “waters of the United States” is no simple task. Sometimes experts are needed. Even that may not be enough because application of the law has been so subjective and inconsistent.
On top of the all this confusion, there are harsh civil and criminal penalties for violating the law, even if done inadvertently. The Court’s opinion will help to ease these fears.
There will be the inevitable scare tactics that this opinion will weaken environmental protections. It will certainly reduce the number of federally regulated waters compared to what the EPA and Corps have wanted to regulate. But federal regulation is far from the only way to address water pollution.
In fact, Congress in the Clean Water Act made it expressly clear that states are supposed to play the lead role in protecting waters, not the federal government. States and local communities are closer to, and affected by, their unique water pollution issues. They are in the best position to determine if governmental action is needed.
Our nation’s waters don’t benefit from federal one-size-fits all approaches. Nor do they benefit from agency bureaucrats wasting time and resources simply trying to figure out what waters are “waters of the United States” instead of focusing their efforts on properly and consistently applying the law.
Sackett v. EPA is no doubt a landmark case. It’s a major win for property rights, federalism, and respecting the will of Congress. It’s also a win for the environment.