By Lawrence Hurley
WASHINGTON -The U.S. Supreme Court on Monday agreed to consider limiting the scope of a landmark federal environmental law as it took up for the second time an Idaho couple’s bid to build on property the federal government has deemed a protected wetland.
The justices will hear an appeal by Chantell Sackett and her husband Mike Sackett, who own property in Priest Lake, Idaho where they hoped to build a home, of a lower court ruling favoring the government.
The court will consider what test courts should use to determine what constitutes “waters of the United States” under the landmark 1972 Clean Water Act, the answer to which determines whether the property is subject to regulation, requiring owners to obtain permits in order to carry out construction.
The U.S. Environmental Protection Agency in 2007 determined that the Sacketts’ land was part of a wetland and that they were required to obtain a permit under the Clean Water Act before beginning construction, which they had failed to do.
“The Sacketts’ ordeal is emblematic of all that has gone wrong with the implementation of the Clean Water Act,” said Damien Schiff, a lawyer at the conservative Pacific Legal Foundation, which represents the Sacketts.
There has been lengthy litigation and political debates over how much of a connection with a waterway a property must have in order to require a permit, with the Supreme Court issuing a ruling in 2006 that led to further uncertainty.
Four justices at that time said the law governed land with a “continuous surface connection” to a waterway while Justice Anthony Kennedy, who cast the deciding vote in the 5-4 case and has since retired, said the law extended further to areas that had a “significant nexus” to a waterway.
The new case gives the justices an opportunity to embrace the more stringent test proposed by the four justices, which business groups favor. Lower courts have found that Kennedy’s test controls because he was the key vote.
The last three presidential administrations have sought to clarify the issue through regulations. Democrat Barack Obama embraced broader federal reach, while his Republican successor Donald Trump took the opposite approach. Democratic President Joe President Biden’s administration is currently working on a new regulation.
The Sacketts’ case reached the Supreme Court once before, with the justices ruling unanimously in 2012 that the couple could challenge in court an EPA compliance order imposing financial penalties until they restore the affected land. The area was filled in with gravel and sand after they purchased the property in 2004.
The litigation continued since then even as the regulations evolved. The EPA has since dropped its compliance order for the Sacketts but still has sought to require a permit.
The San Francisco-based 9th U.S. Circuit Court of Appeals last year ruled against the Sacketts, finding that the EPA had “reasonably determined” that the property was subject to Clean Water Act regulation based on Kennedy’s “significant nexus” test. The Sacketts’ lawyers then appealed the case to the Supreme Court.
The justices are expected to hear the case in their next term, which begins in October and ends in June 2023.
(Reporting by Lawrence Hurley; Editing by Will Dunham)