Loyola University Chicago School of Law, JD 2023
On Monday, October 3, the Supreme Court began its new term by hearing a case concerning the rights of property owners and the interests of the Environmental Protection Agency’s (EPA) Clean Water Act. When Michael and Chantell Sackett purchased land in Idaho in 2004, they did so with the intention of building a home on the property. Their plans were quashed when the EPA stepped in and declared that the land the couple purchased constituted a wetland, subject to regulation under the EPA’s Clean Water Act because the land is located 300 feet from a large lake. The Court is now faced with the question; how far can the government regulate water in the United States? Additionally, what counts as ‘waters of the United States”? Although the Court is not expected to make a decision regarding this case until June of 2023, the repercussions of the court siding with the Sacketts could be detrimental.
The Clean Water Act and wetlands
Through the interstate commerce clause, Congress enacted the Clean Water Act in 1972 and defined its scope as ‘the waters of the United States.” The Clean Water Act “establishes the basic structure for regulating discharges of pollutants into the waters of the United States and regulating quality standards for surface waters.” Wetlands are pieces of land where water is present, covers, or is near the soil at some part of the year. Because of their dynamic nature, wetlands are important to our country’s ecosystems as they provide habitats for thousands of species, help in flood prevention, improve water quality, and more.
Although the Clean Water Act’s purpose is clear, its scope is not. Over time, wetlands have become “contested terrain” as the government strives to protect them, and businesses, real estate companies, and agricultural giants aim to use them for their benefit. It is difficult to determine if the “waters of the United States” encompasses wetlands, areas where water comes and goes depending on the season. If this definition encompasses wetlands, the Clean Water Act applies, and the government can regulate the land. The Ninth Circuit found this to be true when, in 2021, it ruled for the EPA and found that the Clean Water Act applies to wetlands. On the October 3 hearing, the Justices of the Supreme Court debated what a wetland is and how much control the government can have over this type of land. Although the Justices could not come to a definite agreement on what it all entails, one thing remained clear; the outcome of the case will determine how the EPA can control wetlands, what is done with them, and whether the government will lose an important part of our ecosystem.
Regulating property rights
The EPA argued that the Sackett’s property is a wetland and is therefore governed by the Clean Water Act, meaning that the Sackett’s required a permit before building on their land. When the EPA discovered that the Sackett’s had begun building on the land without a permit, the agency ordered the couple to restore the land to its previous condition or pay a fine. On the other hand, the Sacketts alleged that the EPA does not have jurisdiction over their land, and a permit is not required because there is not enough water to classify the land as a wetland.
During the current hearing over the land, Justice Sotomayor expressed the importance of property owners having access to a clear test that made it easier to determine whether or not their land constituted a wetland, thereby making it governable by the EPA. Justice Gorsuch added to this sentiment by stating that by adhering to the current scope of the Clean Water Act, property owners have no way to know whether their land is covered and how much of their land is subject to regulation. Violating the Clean Water Act could result in federal penalties and charges. The vague scope of the Clean Water Act is discomforting to property owners who do not want to risk the chances of building on their property without clear guidelines.
The effects of this holding
The Sackett’s case has brought to light the need to clarify what the Clean Water Act covers. The issue is not so much in clarifying, but in the risks that come with narrowing the scope of the Clean Water Act to exclude so much of the United States’ valuable wetlands. While businesses, developers, oil companies, and gas companies will benefit from a narrow holding that allows them to build on wetlands, millions of Americans will lack protection from flooding and access to drinking water.
Additionally, environmental groups claim that a more narrow definition would reduce the government’s ability to protect wetlands that affect bodies of water, therefore allowing more bodies of water to become polluted and unregulated by the EPA. It would be detrimental to lose government regulation of wetlands, and doing so would also open the door for wetlands to affect regulated bodies of water. While a bright line rule is needed to clarify existing rules and laws for all parties involved, a decision in favor of the Sacketts would take away government regulation and protection of wetlands and expose larger and more permanent bodies of water to contamination.
Wetlands are critically important to the preservation of water sources in the United States. Wetlands also provide protection against storms and flooding, provide habitats for thousands of animal and plant species, and provide us with some of the most diverse ecosystems on the planet. Additionally, scientific studies show that wetlands affect the chemical, physical, and biological integrity of rivers and other bodies of water. Narrowing the scope of the EPA’s power through the Clean Water Act would reduce the regulation of some of the most important water sources in the country. While the critics of the clean water act and the Supreme Court are correct in asking for clarification as to what the Clean Water Act controls, a decision for the Sacketts means that wetlands are not considered part of ‘the waters of the United States.’ This decision would limit government regulation of some of the country’s most valuable lands.