Priest Lake

• The U.S. Supreme Court has ruled in Sackett v. EPA that federal protection of wetlands encompasses only those wetlands that directly adjoin rivers, lakes and other bodies of water.
• This is an extremely narrow interpretation of the Clean Water Act that could expose many wetlands across the U.S. to filling and development.
• Under this keystone environmental law, federal agencies take the lead in regulating water pollution, while state and local governments regulate land use.
• Swamps, bogs, marshes and other wetlands provide valuable ecological services, such as filtering pollutants and soaking up floodwaters.

The Sackett case

• Idaho residents Chantell and Mike Sackett own a parcel of land located 300 feet from Priest Lake, one of the state’s largest lakes.
• Indeed, it is still hydrologically connected to the lake and neighboring wetlands by water that flows at a shallow depth underground.
• In 2012, the Supreme Court held that the Sacketts had the right to challenge EPA’s order and sent the case back to the lower courts.

What are ‘waters of the United States’?

• The Supreme Court has previously recognized that the “waters of the United States” include not only navigable rivers and lakes, but also wetlands and waterways that are connected to navigable bodies of water.
• But many wetlands are not wet year-round, or are not connected at the surface to larger water systems.
• The Trump administration then replaced the 2015 rule with a rule of its own that largely adopted the Scalia approach.
• The Biden administration responded with its own rule defining waters of the United States in terms of the presence of either a significant nexus or continuous surface connection.
• However, this rule was promptly embroiled in litigation and will require reconsideration in light of Sackett v. EPA.

The Sackett decision and its ramifications

• The Sackett decision adopts Scalia’s approach from the 2006 Rapanos case.
• None of the nine justices adopted Kennedy’s 2006 “significant nexus” standard.
• However, Justice Brett Kavanaugh and the three liberal justices disagreed with the majority’s “continuous surface connection” test.
• However, past efforts to legislate a definition have fizzled, and today’s closely divided Congress is unlikely to fare any better.
• In my view, Sackett v. EPA might be just one step toward the teardown of federal environmental law.