The Supreme Court Case That Could Upend the Clean Water Act

Everyone wants clean water, and America's public waterways haven't always been very clean.

In 1969, the Cuyahoga River in Ohio was so polluted by Cleveland's manufacturing industry that it caught on fire, which inspired a Time magazine feature describing a river that "oozes rather than flows."

In 1970, President Richard Nixon signed the National Environmental Policy Act, and later that year he established the Environmental Protection Agency (EPA) to "make a coordinated attack on the pollutants which debase the air we breathe, the water we drink, and the land that grows our food."

But in fighting to reduce the pollution of air, land, and water, the EPA has dictated to Americans what they can do on their property even when it has no clear environmental benefit or exceeds the agency's authority.

Now the agency's broad mandate, for the first time since its creation, is facing a serious court challenge. It's a case that started 15 years ago with a couple living in a small town in Idaho.

"When I was in high school, I was up there camping and fell in love with Priest Lake and just had to try and figure out how to live there," Mike Sackett told Reason in 2012.

Mike and his wife Chantell Sackett purchased a tract of land abutting an easement, which guaranteed them a prime view of Priest Lake. They planned to leverage their background in construction to build the lakefront home of their dreams. A few days into construction, the Sacketts received a surprise visit from the EPA and Army Corps of Engineers.

"They walked on to the property and said, 'you need to stop work immediately,'" says Chantell Sackett.

The government accused the Sacketts of filling in "wetlands." But the Sacketts didn't understand how a residential lot in an established subdivision with a full sewer hookup 100 yards from the lake and a county title with no indication of wetland status would qualify.

A nearby ditch drained into a stream that connected to the lake. It was separated from the lot by 30 feet of paved road. The proximity of the Sacketts' land to the ditch—in addition to the existence of a subterranean water flow discovered beneath their lot as they began construction—meant that their residential lot was a federally protected wetland, according to the EPA.

Although the Sacketts faced a fine of up to $75,000 a day for violation of the Clean Water Act and the compliance order, the EPA argued they had no right to challenge them in court until the agency actually took action to impose and collect the fine, which it could do retroactively at any time.

With this threat looming over them, the Sacketts paused construction. The EPA also wanted the Sacketts to remove the gravel they'd poured, fence in the lot, and plant foliage, but the couple refused.

"[The EPA told us], 'we want you to fence it. And then when we want you to plant these wetlands plants, and then we want you to watch it for three to five years and make notes, and we'll be able to come look at that.' And I go, 'are you kidding me?'" says Chantell Sackett. "Why would we do that? I mean, it's a lot in a subdivision…[Does the EPA] want to create a wetland?"

That was in 2012. The Sacketts' case went all the way to the Supreme Court, which ruled unanimously that the EPA's compliance orders were indeed subject to judicial review, meaning the agency couldn't retroactively fine the Sacketts for being in violation of the order as the court challenge was adjudicated.

Ten years later, the Supreme Court is taking up the next part of that case: a challenge to how the agency defines a "wetland."

"The first [Supreme Court] decision got us the right to get into court, and now we hope to finally secure that victory," says Damien Schiff, an attorney with the Pacific Legal Foundation, the nonprofit law firm that is arguing the case before the Supreme Court for a second time. He says that a favorable ruling could finally constrain a federal agency that routinely bullies land owners.

"The big picture is a dispute that's roiled the property rights and environmental law communities for half a decade. And that is the scope of the Clean Water Act," says Schiff.

The EPA and the Army Corps, which are the agencies that administer this law, have over the last several decades used their regulatory authority to radically expand what qualifies as "navigable waters" of the United States.

The Clean Water Act allows the EPA to regulate all of the country's "navigable waters," from rivers to lakes to streams to oceanic channels. But the definition of "navigable water" has steadily expanded since the act's passage in 1972. Farmers like Curtis Martin weren't allowed to add a manmade lake that increased the biodiversity of his land because the EPA said it violated the act. John Duarte almost lost his farm in California's Central Valley after the EPA fined him more than $30 million in restoration fees. Reason covered Duarte's story back in 2017.

The Supreme Court weighed in on the EPA's expansive authority to regulate land in a 2006 case, in which the agency had tried to stop a Michigan developer named John Rapanos from turning part of his 54-acre property into a shopping mall, even though it was more than 11 miles from the nearest navigable water. Because the land became swampy in the spring as the snow melted, it argued that Rapanos' development plan would destroy protected wetlands.

He sued, and a 5–4 majority vacated the ruling against Rapanos. But Justice Anthony Kennedy declined to join Justice Antonin Scalia's plurality opinion that would've further limited the EPA and Army Corps of Engineers' regulatory authority. Scalia wrote that the standards the government sought gave the EPA and Army Corps of Engineers jurisdiction over between "270 to 300 million acres of swampy lands —including half of Alaska and an area the size of California in the lower 48 States" and that landowners spent more than $1.7 billion a year obtaining wetlands permits.

Kennedy rejected Scalia's reasoning and devised the "significant nexus" standard, which gave the government the authority to regulate the land if pollution would "significantly affect the chemical, physical, and biological integrity" of nearby navigable water. Kennedy's standard carried the day in the lower courts, but Schiff says it's far too ambiguous to hold any longer.

"A small ambiguity does not mean carte blanche to regulate anything," says Schiff, who acknowledges there's not always a clear boundary between water at the shoreline. The Sacketts' property, however, is nowhere near that boundary. "[The EPA doesn't] really see any need to have any sort of boundary-drawing problem. They think wetlands on their own, even wetlands that are de facto isolated from other waters, could still be regulated."

The EPA argues that it needs the power to regulate properties like the Sacketts' because human activity on nearby lands can have a detrimental effect on protected waters, like Priest Lake. They point to the Clean Water Act's authorization to regulate land "adjacent" to protected water. But how far does "adjacency" extend? That question was raised by Justice Neil Gorsuch in oral arguments when he asked the EPA's attorney whether a property three miles away from a navigable water could be considered "adjacent":

Gorsuch: So [the adjacent property] couldn't be three miles [away]?

Brian H. Fletcher [EPA Attorney]: I don't think it could, Justice Gorsuch.

Gorsuch: Could it be two miles?

Fletcher: That, again, when we start to talk about miles, that sounds too far to be adjacent—to reasonably be proximate to.

Gorsuch: One mile?

Fletcher: Again, I see where this is headed. (Laughter.) But, again, I think—

Gorsuch: So, if the federal government doesn't know, how is a person subject to criminal time in federal prison supposed to know?

Fletcher: So the agencies, in recognition of this problem, make available free of charge jurisdictional determinations as to any property….

Gorsuch: Their manuals, though, don't tell us the answer.

Schiff says that wetland conservation is an important aspect of protecting water quality but Congress simply didn't authorize the federal government to regulate them, as evidenced by the lack of the term "wetland" in the text of the Clean Water Act.

"Just because the feds don't regulate doesn't mean that state and local governments can't regulate," says Schiff, who points out that when the courts limited the scope of the act in the past, some states expanded their own water quality regulations.

Images of burning rivers can serve as dramatic reminders of the costs of uncontrolled pollution, but that doesn't mean that the federal government is the best entity to protect natural resources. In Florida, the Army Corps of Engineers has for years overridden local authorities to divert sludge from the state's largest lake into lagoons and estuaries, introducing toxic algae blooms that have wreaked havoc on the local ecosystem and introduced serious health hazards, ironically in possible violation of the Clean Water Act it's supposed to help enforce.

"A big, broad federal law is oftentimes not the best way to resolve environmental problems," says Schiff, "not just because it crowds out state and local efforts, but, perhaps more importantly, it crowds out private party efforts when you have the federal government threatening significant fines for any sort of activity that may affect waters and also making it much more difficult to do anything in terms of private conservation."

Schiff says he expects a ruling in early 2023. The more than decadelong ordeal has taken its toll on the Sacketts, who never completed work on the home. But if their case prevails for a second time in the Supreme Court, they'll not only have established the clear right for citizens to challenge powerful executive agencies in court, they'll have also established the right of property owners to improve their lands without exorbitant compliance costs and legal threats from the federal government.

"Most private property rights violations nowadays are because of environmentally motivated laws or environmentally motivated lawsuits," says Schiff. "And to fight back against that, you have to go straight to the statutes themselves."

Produced by Zach Weissmueller; edited by Danielle Thompson; additional graphics by Isaac Reese; sound mixing by Ian Keyser

Music credits: "Turning Tides" by Letra via Artlist; "Several" by Melancholicks via Artlist; "Grey Shadow" by ANBR via Artlist; "The Other Side" by ANBR via Artlist; "Dark Hollows 7" by G-Yerro via Artlist; "Dark Hollows 11" by G-Yerro via Artlist; "Campfire" by Aleksey Chistilin via Artlist; "Solace—Instrumental Version" by Roniit via Artlist; "Internal Joy (Reprise)" by Bennett Sullivan via Artlist

Photo credits: Pacific Legal Foundation; Eric Lee—Pool via CNP/CNP / Polaris/Newscom; Graeme Sloan/Sipa USA/Newscom; SIPAUSA POOL/SIPA/Newscom; Chuck Kennedy/KRT/Newscom; Charles Trainor Jr./TNS/Newscom; Greg Lovett/ZUMA Press/Newscom; CNP/AdMedi/SIPA/Newscom