The first case of the Supreme Court’s October 2022 term is Sackett v. EPA, No. 21-454. Over the last fifteen years, the EPA has run amok regulating the wetland that it alleges to exist on Michael and Chantell Sackett’s property. In Sackett, the Supreme Court should adopt a meaningful and appropriate test for determining whether wetlands are “waters of the United States” that can be regulated under the Clean Water Act (CWA).

Congress enacted the CWA fifty years ago with the goal of regulating the discharge of pollutants into the nation’s “navigable waters,” which the CWA defines as “the waters of the United States, including the territorial seas.” The EPA has expansively interpreted the statute, adopting a regulation regime under Justice Kennedy’s “significant nexus” test, announced in a concurring opinion in Rapanos v. United States, which enables regulation where “the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the . . . integrity of other covered waters more readily understood as ‘navigable.’”

The Sacketts’ fifteen-year saga demonstrates universal reach of the EPA’s asserted jurisdiction and the unconscionable treatment of landowners and their property rights by the federal government. The Sacketts purchased a two-thirds-acre lot in a residential subdivision near Priest Lake, Idaho, on which the Sacketts wanted to build a home. The Sacketts’ lot is separated from the lake by a half-dozen homes along a gravel road. The Sacketts’ lot is bordered on the other side by a paved road, on the far side of which is a manmade ditch containing drainage-water from a wetland-area to the north. There is no surface connection between any water on the Sacketts’ lot and either the lake or the drainage ditch. A subsurface connection between the ditch and the Sacketts’ lot is suspected to exist, but any water through that subsurface connection flows to, and not from, the Sacketts’ lot. Thus, nothing on the Sacketts’ lot affects the lake or any tributary or wetland connected to the lake.

After obtaining local building permits, the Sacketts began site preparations for construction of their house, in 2007, including adding fill to the lot. Within days, officials from the EPA entered their land, told them to stop construction immediately, and issued an administrative “compliance order,” asserting the Sacketts’ lot contained a wetland “adjacent to” Priest Lake and alleging Sacketts violated the CWA by adding fill to their lot without a CWA permit. The EPA ordered the Sacketts to restore their lot to its original pre-construction condition. Failure to comply with the order could result in fines of up to $75,000 per day.

The EPA’s compliance order submerged the Sacketts in a regulatory swamp. Rather than expend the time (788 days on average) and expense ($271,596 on average) necessary to navigate the CWA permit process, the Sacketts sued the EPA under the Administrative Procedures Act in the U.S. District Court for the District of Idaho, asking the court to enjoin enforcement of the compliance order. The district court and Ninth Circuit denied the Sacketts relief because the EPA had not yet sought to enforce its order. But in Sackett v. EPA, the Supreme Court unanimously reversed, holding the Sacketts could immediately challenge the EPA’s compliance order without the agency first taking further action to enforce its order.

Adding insult to injury, after remand to the district court, the EPA amended its compliance order, forcing the Sacketts to amend their complaint and endure seven additional years of litigation in the district court. Even worse, during the Sacketts’ second appeal to the Ninth Circuit, the EPA attempted to moot the case by withdrawing its amended compliance order without acknowledging that it couldn’t regulate the Sacketts’ land. As the Ninth Circuit recounted with perplexity, “[a]fter we granted EPA two filing extensions for its opposition brief, the agency sent the Sacketts a two-paragraph letter in March 2020, withdrawing the amended compliance order issued twelve years prior. In the letter, the agency explained that ‘several years ago EPA decided to no longer enforce the [order] against you.’”

Seriously? The EPA had decided to drop its issue with the Sacketts’ property several years ago, but it nonetheless compelled them to endure years of additional, oppressive litigation (while neglecting to inform them they could actually build their home after all)? The Ninth Circuit found that the EPA had acted in bad faith and refused to moot the case, explaining, “[f]orcing the Sacketts to engage in years of litigation, under threat of tens of thousands of dollars in daily fines, only to assert at the eleventh hour that the dispute has actually been moot for a long time, is not a litigation strategy we wish to encourage.” Sackett, 8 F.4th at 1086.

Unfortunately for the Sacketts, in the end the Ninth Circuit upheld the EPA’s ability to regulate their land, holding, “EPA reasonably determined that the Sacketts’ property contains wetlands that share a significant nexus with Priest Lake, such that the lot was regulable under the CWA and the relevant regulations.” Thus, fifteen years after the Sacketts started building their home, their lot still lies vacant.

The Supreme Court should finally give the Sacketts and countless landowners relief by adopting a test consistent with Justice Scalia’s reasoning in Rapanos, whereby “only those wetlands with a continuous surface connection to” navigable waters can be regulated under the CWA. The “significant nexus” test is no standard at all and transforms the EPA into a national ubiquitous land planning authority.

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