The Supreme Court has opened the door for a possible revision to the wetlands regulations by agreeing that it will decide whether Chantell and Michael Sackett are allowed to build a house on the Idaho panhandle. Even though the Biden administration is defining the upstream reach of clean water law, justices will hear the case.
The nonprofit Pacific Legal Foundation, which “defends Americans from government overreach,” said the case would give the Supreme Court the opportunity to revisit a 2006 ruling that said that if a wetland has a “significant nexus” with navigable waters, it is covered by the Clean Water Act. There have been numerous arguments over how to determine that connection.
In 2015, the Obama administration wrote a “waters of the United States” regulation —quickly blocked by court challenges led by farm and home builder groups who argued the rule is overly broad—to specify which rivers, streams and wetlands are covered by clean water protections. The Trump administration replaced it with a much narrower rule, which would be superseded by the Biden proposal. Officials stated that it would use the same definition as before 2015.
Damien Schiff, a Pacific Legal Foundation lawyer, said the Sackett case “is emblematic of all that has gone wrong with the implementation of the Clean Water Act. The Sacketts’ lot lacks a surface water connection to any stream, creek, lake, or other water body, and it shouldn’t be subject to federal regulation and permitting.” The foundation represents the Sacketts in the case.
In accepting the case, the Supreme Court said it would consider whether the Ninth Circuit U.S. Court of Appeals used “the proper test for determining whether wetlands are ‘waters of the United States.’”
In the 2006 case, four justices suggested the clean water law covered wetlands with a “continuous surface connection” to navigable waters. The fifth member of the majority said a “significant nexus” was sufficient. This approach has been followed by courts all over the country, and it was used by the Obama administration as the basis of its WOTUS rule.
In 2004, the Sacketts purchased half an acre near Priest Lake in Idaho with plans for building a house. They were told that the plot contained a wetland and that they would need federal permits to construct on it. The Supreme Court ruled unanimously in 2012 that the Sacketts had the right as landowners to challenge the EPA’s wetlands determinations. They were also represented by the Pacific Legal Foundation.
The president of the largest U.S. agricultural group called on members to reject the Biden approach early this month. “It is critical that this administration understands that we should not need a team of lawyers and consultants just to farm our land,” said Zippy Duvall, president of the American Farm Bureau Federation.
Source: Successful Farming