EPA powers limited to surface waters, SCOTUS rules in Priest Lake case  

by Logan Finney, Idaho Reports 

The U.S. Supreme Court ruled this week in favor of an Idaho couple who started constructing a home on their lot on wetlands near Priest Lake without a permit, in a decision with far-reaching consequences for how the Environmental Protection Agency can regulate waters across the country. 

The case, argued before the court in October, should settle a long-disputed argument regarding the EPA’s control over water pollution as delegated by Congress under the Clean Water Act.  

“By all accounts, the Act has been a great success,” Justice Samuel Alito wrote for the majority in the Sackett opinion, released on Thursday. “Before its enactment in 1972, many of the Nation’s rivers, lakes, and streams were severely polluted, and existing federal legislation had proved to be inadequate. Today, many formerly fetid bodies of water are safe for the use and enjoyment of the people of this country. There is, however, an unfortunate footnote to this success story: the outer boundaries of the Act’s geographical reach have been uncertain from the start.” 

Stephen Miller from the University of Idaho College of Law told Idaho Reports last year that the essential question of the Sackett case is federal control over waters of the United States, or WOTUS, the scope of which has repeatedly shrunk and grown between presidential administrations of different parties.  

“The Sacketts don’t dispute that they have wetlands on their property,” Miller said. “What they’re disputing is whether they’re within the jurisdiction of the Clean Water Act, and therefore whether they have to get one of these permits which can be expensive and difficult to maintain and get.” 

Miller said the most recent Supreme Court decision on the issue, Rapanos v. United States in 2006, was a split decision that failed to answer that question. One approach, led by the late Justice Antonin Scalia, said there needed to be a ‘continuous surface connection’ between traditional navigable waters and the waters in question for the EPA to have jurisdiction to regulate. The other approach, offered by retired Justice Anthony Kennedy, said the court’s WOTUS test should take more hydrological and ecological factors into account as to whether there is a ‘significant nexus’ between the two bodies of water.  

According to the EPA, the “wetlands” on the Sacketts’ lot are “adjacent to” (in the sense that they are in the same neighborhood as) what it described as an “unnamed tributary” on the other side of a 30-foot road. That tributary feeds into a non-navigable creek, which, in turn, feeds into Priest Lake, an intrastate body of water that the EPA designated as traditionally navigable. To establish a significant nexus, the EPA lumped the Sacketts’ lot together with the Kalispell Bay Fen, a large nearby wetland complex that the Agency regarded as “similarly situated.” According to the EPA, these properties, taken together, “significantly affect” the ecology of Priest Lake. Therefore, the EPA concluded, the Sacketts had illegally dumped soil and gravel onto “the waters of the United States.”

Sackett v. Environmental Protection Agency

The newly composed high court, in a majority opinion led by Justice Samuel Alito, sided with Scalia. 

“The CWA is a potent weapon… Property owners who negligently discharge ‘pollutants’ into covered waters may face severe criminal penalties including imprisonment,” Alito wrote. “…the CWA prohibits the discharge of pollutants into only ‘navigable waters,’ which it defines as ‘the waters of the United States, including the territorial seas.’ The meaning of this definition is the persistent problem that we must address.” 

The majority opinion ruled that wetlands require a continuous surface connection to WOTUS to be regulated under the Clean Water Act. “The wetlands on the Sacketts’ property are distinguishable from any possibly covered waters,” Alito wrote, reversing the 9th Circuit ruling that the builders needed to get a federal permit before filling the wetland.

The five-justice majority repeatedly emphasized the power Congress gave the Clean Water Act, “broadly enough to criminalize mundane activities like moving dirt, this unchecked definition of ‘the waters of the United States’ means that a staggering array of landowners are at risk of criminal prosecution or onerous civil penalties.” 

Justice Clarence Thomas, joined by Justice Neil Gorsuch, in a concurring opinion agreed with Alito’s conclusion, while adding the court should interpret “navigable” and “of the United States” to limit the statute further. 

The other four justices agreed that the significant nexus test should not be adopted, and that the wetlands on the Sacketts’ property do not fall under the Clean Water Act. However, their findings stopped short of endorsing the continuous surface connection test adopted by the majority. 

“Adjoining wetlands are contiguous to or bordering a covered water, whereas adjacent wetlands include both (i) those wetlands… and (ii) wetlands separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like,” Justice Brett Kavanaugh wrote in an opinion agreeing with the ruling but not the reasoning behind it. “By narrowing the Act’s coverage of wetlands to only adjoining wetlands, the Court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States.” 

Justice Elana Kagan, joined by Justice Sonia Sotomayor and Justice Ketanji Brown Jackson, took it a step further than Kavanaugh, accusing the majority of rewriting the legislative intent of the Clean Water Act and referring to a similar ruling last year limiting the EPA’s power under the Clean Air Act.  

“Congress chose just the word needed to meet the Act’s objective. A wetland is protected when it is ‘adjacent’ to a covered water—not merely when it is ‘adjoining’ or ‘contiguous’ or ‘touching,’ or (in the majority’s favorite made-up locution) has a ‘continuous surface connection,’” Kagan wrote. “Today’s majority, though, believes Congress went too far… Surely something has to be done; and who else to do it but this Court? It must rescue property owners from Congress’s too-ambitious program of pollution control.” 

Idaho Rivers United executive director Nic Nelson in a news release said, “While today’s ruling is truly disheartening, it highlights the importance of electing candidates with an understanding of the science of ecology. Judges are only meant to interpret the intent of laws, therefore it is incumbent that our Federal delegates be literate in the ecological importance of our most precious and increasingly scarce resource – water.”

Governor Brad Little and other Republican governors have criticized recent federal efforts under the Biden administration to expand WOTUS rules.  

“The Supreme Court’s decision to reject the EPA’s expanded definition of WOTUS and uphold the rights of the Sackett family to build their home on their own property stands as a powerful affirmation of individual property rights,” U.S. Rep. Russ Fulcher, R-ID01, said in a news release. “For Idahoans, water is a lifeline and local control has a long, proud tradition. I commend the Court’s recognition of the Sacketts’ constitutional rights and the significance of protecting Idaho’s ranchers, farmers, irrigators, and landowners from regulatory overreach.” 

Since 2021, Congressman Fulcher has urged the EPA to halt any implementation of an expanded definition of WOTUS until the Supreme Court ruled on Sackett v. EPA. In 2021, as the agency looked poised to expand the definition of “navigable waters,” Rep. Fulcher wrote that “rather than soliciting and genuinely listening to input from the general public, small businesses,[…] the Agencies intend to proceed with a rulemaking that will once again confuse regulated parties and lead to the same misinterpretations of legal standards as the Obama Administration’s WOTUS rule.” In 2022, Rep. Fulcher warned that moving ahead with changes to WOTUS would constitute a “misuse of agency resources and taxpayer dollars” and “would only serve to leave the regulated community with prolonged uncertainty regarding regulations and enforcement.” In April of 2023, Rep. Fulcher voted for H.J. Res. 27, which would block the Biden Administration’s WOTUS rule. The bill passed the House of Representatives with a bipartisan vote of 227-198. 

“This decision will bring the regulation of the Clean Water Act closer to the Trump Administration’s 2020 Navigable Waters Protection Rule, a rule that I helped write that actually worked for rural America. When the EPA announced its intention to replace the Navigable Waters Protection Rule with a new rule greatly expanding the federal government’s reach, I warned that this pending Supreme Court decision would likely send them back to the drawing board anyway,” said U.S. Rep. Mike Simpson, R-ID02. 

“I am glad to see the Court provide needed clarity on this issue. The EPA simply cannot continue in its attempt to regulate every puddle, ditch, and stream in this country. This decision is a victory for Idaho and the many property owners, farmers, and ranchers who are left to deal with the very real consequences of regulatory uncertainty.” 

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Editor’s note: This story was updated on May 30 to more accurately reflect the state of construction on the Priest Lake property.