In 2004, Michael and Chantell Sackett purchased a plot of land near Priest Lake in northern Idaho and prepared to build a house there. But after obtaining their permits, the couple received an order from the EPA to abandon the project for being too close to the wetlands.
The EPA based its order on the Clean Water Act (CWA) of 1972 that gave the federal government the power to regulate the waters of the United States (WOTUS) — a definition that has expanded over time to even include drainage ditches.
The Sacketts filed a lawsuit challenging the EPA’s authority on the matter. The Ninth Circuit Court of Appeals ruled that their property falls within a wetland and thus under WOTUS regulations.
The Sacketts then appealed to the U.S. Supreme Court.
As the court worked through its docket, the State of Texas and several of its state agencies filed their own lawsuit against the EPA in January for issuing a new definition of WOTUS that potentially included “any place where water collects and flows.”
On Thursday, the Supreme Court delivered its unanimous 9 to 0 decision on the side of the Sacketts — though the justices were divided over how to interpret the CWA as a whole.
“In sum, we hold that the CWA extends to only those ’wetlands with a continuous surface connection to bodies that are “waters of the United States” in their own right,’ so that they are ‘indistinguishable’ from those waters,” wrote Justice Samuel Alito in the majority opinion.
He continued, “The wetlands on the Sacketts’ property are distinguishable from any possibly covered waters.”
In a concurring opinion, Justice Clarence Thomas wrote that “wetlands are just the beginning of the problems raised by the agencies’ assertion of jurisdiction in this case.”
“Despite our clear guidance … that the CWA extends only to the limits of Congress’ traditional jurisdiction over navigable waters, the EPA and the [U.S. Army Corps of Engineers] have continued to treat the statute as if it were based on New Deal era conceptions of Congress’ commerce power. But, while not all environmental statutes are so textually limited, Congress chose to tether federal jurisdiction under the CWA to its traditional authority over navigable waters. The EPA and the Corps must respect that decision.”
Justice Brett Kavanaugh joined the court’s three liberals — Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson — in siding with the Sacketts but opposing Alito’s “new” interpretation of the CWA.
In his own concurring opinion, Kavanaugh agreed with the court’s judgment in Sackett but not how it arrived at the decision: “I respectfully disagree … with the Court’s new ‘continuous surface connection’ test.”
“In my view, the Court’s new test is overly narrow and inconsistent with the [CWA’s] coverage of adjacent wetlands,” Kavanaugh wrote. “The [CWA] covers adjacent wetlands, and a wetland is ‘adjacent’ to a covered water (i) if the wetland is contiguous to or bordering a covered water, or (ii) if the wetland is separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like.”
Justice Elena Kagan also issued a concurring opinion that nonetheless disagreed with the majority’s thought process. “Vital to the Clean Water Act’s project is the protection of wetlands — both those contiguous to covered waters and others nearby,” Kagan wrote.
She added, “‘Adjacent’ means neighboring, whether or not touching; so, for example, a wetland is adjacent to water on the other side of a sand dune. That congressional judgment is as clear as clear can be — which is to say, as clear as language gets.”
The Texas Farm Bureau, which filed an amicus brief in the case, issued a statement on the ruling: “The ruling by the U.S. Supreme Court is a tremendous victory for private property rights and for farmers and ranchers in Texas and across the nation. The EPA overstepped its authority.”
“This case represented blatant overreach by a federal agency that willfully disregarded the property rights of landowners in its application of the Clean Water Act. This issue has been a focus for many years, and it’s gratifying to see the rights of landowners protected and the authority of government reined in by the Court’s decision.”
U.S. Rep. Ronny Jackson (R-TX-13) wrote in a social media post on the ruling, “HUGE WIN from the Supreme Court on Sackett v. EPA. Biden can no longer trample over American agriculture using the Clean Water Act. BIG DAY for America’s farmers & ranchers!”
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