Chimney Sweep

Supreme Court docket delivers blow to wetlands protections in win for Idaho landowners

WASHINGTON — The Supreme Court on Thursday significantly weakened a landmark water pollution law by ruling that an Idaho couple’s property does not include wetlands that are subject to federal oversight by law.

The ruling, in which all judges agreed on the outcome but differed on the legal reasoning, concluded that Mike and Chantell Sackett’s land does not fall under the jurisdiction of the Clean Water Act of 1972 and therefore they do not qualify for federal approval need to build property on it.

The decision ends a year-long battle between the Sacketts and the federal government and is a victory for conservative groups and business interests opposed to full application of the Water Pollution Act.

President Joe Biden criticized the decision, saying it “turns on its head the legal framework that has protected American waters for decades.” The ruling “contradicts the science that affirms the critical role of wetlands in protecting our nation’s streams, rivers and lakes from chemicals and pollutants,” he said in a statement.

Damien Schiff, the Sacketts’ attorney, said the decision “resets the scope of the Clean Water Act to its original and reasonable limits.” The decision represents a “profound victory for property rights and the constitutional separation of powers,” he added.

The ruling is another example of the court’s conservative judges pushing ahead with a ruling that limits the sweeping powers of federal agencies, a common theme in recent years.

Coming to its broader legal conclusion, the court ruled 5-4 in an opinion by conservative Justice Samuel Alito that the Clean Water Act’s jurisdiction extended only to wetlands that were “indistinguishable” from larger bodies of water because they would have a “continuous surface” connection.”

The wetlands on the Sacketts’ property are “distinguishable from any potentially covered body of water,” he wrote.

The ruling will ease some burdens on landowners, including big business interests, Alito said, as the law “can be sweeping to criminalize everyday activities like earth moving.”

The impact will be felt across the country, as environmental groups say millions of acres of wetlands will no longer fall under federal jurisdiction. Unless states tighten their own environmental laws, property owners will have considerable freedom to fill in wetlands without having to go through the previously required state permitting process.

Conservative Justice Brett Kavanaugh joined the court’s three Liberal Justices in rejecting the new majority test.


“By limiting the scope of the Wetlands Act to only contiguous wetlands, the Court’s new review means that some long-regulated contiguous wetlands are no longer covered by the Clean Water Act, with significant implications for water quality and flood control across the country United States will have,” he wrote.

The court’s new approach could jeopardize both the ability to regulate the Mississippi levee system and effectively monitor the Chesapeake Bay, Kavanaugh said. Levees separating wetlands from the Mississippi mean those wetlands could be outside of federal oversight and wetlands vital to the Chesapeake Bay could be filled in without state permits, he said.

In a separate statement, Liberal Justice Elena Kagan targeted the majority to rewrite a law passed by Congress. She compared the ruling to the court’s decision last year to limit the scope of the Clean Air Act as part of efforts to tackle climate change.

“The vice is the same in both cases: the appointment of the court as the national decision-maker in environmental policy,” she said.

In this case, the Sacketts returned to the Supreme Court for the second time after the judges ruled in their favor in a previous case in 2012. Both cases involve the same underlying dispute: their desire to build a property on their property in Priest Lake, Idaho, portions of which have been designated a protected wetland area by the EPA, meaning the land is subject to federal jurisdiction and A permit is required to build on it.

Chantell and Mike Sackett.Lawrence Hurley/E&E News

The litigation focused on whether the Sacketts could challenge an EPA compliance order in court after they filled the affected area with gravel and sand without a permit. The dispute, which began in 2007, continued over whether the land was even a wetland.

The Sacketts returned to the Supreme Court after the 9th U.S. Circuit Court of Appeals, based in San Francisco, ruled in favor of the federal government in August 2021 that the area was in fact a wetland.

The law defining a wetland – which is crucial for property developers and other business interests – has long been unclear and was not resolved when the Supreme Court ruled a previous case on the issue. In 2006, four judges said the Clean Water Act covers wetlands with a “continuous surface connection” to a waterway, but there was no clear majority. Judge Anthony Kennedy, who cast the fifth vote in that 5-4 ruling, presented his own test, saying the statute provides jurisdiction over wetlands with a “significant connection” to a waterway.

Successive presidential administrations have attempted to bring clarity to the law, with Democrats generally favoring greater federal power and Republicans, supported by business interests, saying the Clean Water Act’s jurisdiction should be limited.

In Thursday’s ruling, the court rejected the significance nexus test and appeared to adopt the approach of the four-judge block in the 2006 case.

Sam Sankar, a lawyer for environmental group Earthjustice, said up to 90 million hectares of formerly protected wetlands could now be at risk.

Because liberal-leaning states are likely to enact new laws to protect wetlands, “the impacts on the ground will be most severe in states that are most polluter-friendly and least concerned about environmental protection,” he added.

While environmental activists were depressed, the business community rejoiced at a decision that will be a boon to companies across multiple industries, including energy and construction.

“The Supreme Court has given long-overdue relief to businesses and landowners across our country,” said Marty Durbin, a senior official at the US Chamber of Commerce.

The Biden administration finalized its own rule in December, largely reverting to the interpretation that existed prior to the actions of the Obama and Trump administrations, although the new rule already faced its own legal challenges. Because of the Supreme Court ruling, the EPA must now go back to the drawing board.

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