PLF clients to Biden administration: “Put down the rulemaking pen and wait for the Supreme Court on ‘navigable waters’”

February 17, 2022 | By CHARLES YATES

On December 7, 2021, the U.S. Environmental Protection Agency and Department of Army posted their hefty, proposed re-write of a major water regulation in the Federal Register. 

During the comment period that followed, the agencies’ “Revised Definition of Waters of the United States” collected more than 93,000 comments—a remarkable number, but perhaps appropriate given the agencies’ directive to redefine the scope of their authority to regulate “navigable waters” under the Clean Water Act. 

Out of all the responses, that of Chantell and Mike Sackett should give the Biden administration the greatest pause. 

The Sacketts’ battle with the federal government over permission to build a home on their Priest Lake, Idaho, property goes back to 2007 when the EPA declared their lot a federally regulated wetland. Since then, their quest to clearly define navigable waters has spanned 15 years and four presidential administrations, zigzagged through lower courts, and earned a 2012 Supreme Court victory affirming their right to challenge the EPA and back again to lower courts. 

On January 24, the Supreme Court announced it will hear the case a second time (Sackett II), which bears heavily on Biden’s rulemaking. That case will provide clarity on the definition of navigable waters and, in turn, the legal limits of federal control over private land. 

The Sacketts, along with all of our other clients engaged in similar fights, submitted a comment letter urging the Biden administration to abandon its current rulemaking and wait for the Supreme Court to provide much-needed guidance. Doing so would help the administration achieve its sought-after “durable” definition of navigable waters while avoiding the pitfalls of the past three attempts to re-write the rule: 

“With each change, businesses, local governmental jurisdictions, and private property owners have had to delay projects, amend plans, and alter management practices. And with each shift, the associations that represent them … have had to expend additional resources advocating for their members’ interests and educating them about the changing regulatory landscape. Finalizing the Proposed Rule would represent the fourth time since 2015 that the regulated public has had to pivot in such a manner. Finalizing the rule without waiting for the Court to decide Sackett II would increase this harm because any final rule would potentially require immediate amendment as soon as a decision is issued—necessitating yet another costly pivot.”

It makes no sense for the federal government to pile new confusion and unnecessary costs onto businesses and property owners when the Supreme Court will weigh in soon enough. And given the repeated failures of previous administrations to define navigable waters in the absence of further guidance from the Supreme Court, there is absolutely no reason to believe the Biden administration will be able to do so. 

The Sacketts have spent 15 years fighting for closure. The Biden administration can wait a few more months.