Long-running navigable waters case heads back to Supreme Court

Washington, D.C.; September 22, 2021: Today, Idaho property owners asked the U.S. Supreme Court to revisit a 2006 ruling, a request that could have implications for property owners nationwide. Chantell and Mike Sackett asked the Supreme Court to clarify its 2006 opinion in Rapanos v. United States.

In Rapanos, a majority of the Supreme Court rejected EPA’s position that the Clean Water Act regulates virtually all wetlands in the country. But no opinion of the Court garnered a majority of the Justices’ votes. A plurality of four Justices wanted to limit EPA’s regulatory authority to wetlands with a continuous surface water connection to federally regulated waterways. But EPA has generally ignored that test and instead has advanced a test endorsed by only one Justice in Rapanos. When the Sacketts began constructing a home on less than an acre of land in a residential neighborhood near Priest Lake in Idaho in 2007, they encountered the confusion that the Court’s fractured opinion caused.

Although the Sacketts’ property doesn’t have a surface connection to federally protected waterways, the Environmental Protection Agency ordered the Sacketts to stop work, saying they were violating the Clean Water Act and threatening fines of tens of thousands of dollars per day if they didn’t comply. For 14 years, the Sacketts have been in court fighting for their right to build on the residential property.

“Since the Clean Water Act was enacted, EPA has expanded its regulatory powers far beyond what Congress authorized, and property owners like the Sacketts have seen their rights violated in the process,” said Damien Schiff, a senior attorney at Pacific Legal Foundation, which represents the Sacketts. “Right now, there is a great deal of confusion about how much regulatory power EPA has to regulate waterways. Lawsuits challenging different rules from the Bush, Obama, and Trump administrations have created a patchwork of regulation that differs from region to region. The Supreme Court should take this opportunity to clarify what the law is when it comes to navigable waters.”

In 2012, the Supreme Court unanimously ruled that, contrary to EPA’s position, the Sacketts were entitled to immediate judicial review of whether EPA had authority over their home-building project. Last year, the agency lifted its 2008 compliance order and the threat of fines that accompanied it. But it refused to say whether the lot was subject to EPA regulation and future penalties if a home was built on it.

Pacific Legal Foundation represents the Sacketts free of charge. Their case is Sackett v. Environmental Protection Agency.