The long ordeal of a married couple trying to build their dream house on picturesque Priest Lake in northern Idaho got even longer in mid-August after the San Francisco-based Ninth Circuit Court of Appels ruled that Michael and Chantell Sackett were in violation of the Clean Water Act (CWA).

Handing a victory to the U.S. Environmental Protection Agency (EPA), the court determined that the couple’s land does contain wetlands and thus can be regulated by the agency under the CWA.

“In sum, EPA reasonably determined that the Sackett’s property contains wetlands that share a significant nexus with Priest Lake, such that the lot was regulable under the CWA and the relevant regulations,” the court said.

A Critical Moment

The ruling comes at a critical time for landowners, because the Biden EPA plans to rigorously enforce the so-called “Waters of the United States” (WOTUS) provisions of the CWA. Vague wording in the nearly 50-year-old statute has led to much confusion over EPA’s jurisdiction, and two Supreme Court decisions from the 2000s failed to clear up matters.

In a bid to “clarify” federal jurisdiction, the Obama administration issued a strict WOTUS rule in 2015 that put EPA and the U.S. Army Corps of Engineers in a position where they could regulate just about any body of water on private land, including drainage ditches, stock ponds, and ephemeral waters. The Obama WOTUS rule effectively removed the word “navigable” from the CWA’s “navigable waters of the United States,” thereby expanding federal jurisdiction from rivers, bays, etc. to private land, even if that land was not adjacent to or anywhere near a navigable waterway. In effect it was a scheme to allow federal zoning for millions of acres of private land.

And it would have required farmers, ranchers, fruit growers, and other land-based businesses to seek permits from EPA bureaucrats in Washington, none of whom would ever have set foot on the property they were regulating.

The Trump administration overturned the Obama WOTUS rule and circumscribed what the feds could and could not regulate. Two federal courts – one in Texas, the other in Georgia – threw out two sections of the Obama rule as unconstitutional. Now, the Biden administration has overturned the Trump rule and will restore as much of the Obama policy as it can legally get away with.

Meanwhile, the Sacketts, who have been trying to build their home since 2007, are huddling with their attorneys to plot their next move. An appeal to the Supreme Court is one of their options. The Sacketts won a decision before the high court in 2012, but it was procedural in nature and did not go to the heart of the couple’s dispute with EPA.

“Completely Isolated from the Lake”

Tony Francois, a senior attorney with the Pacific Legal Foundation (PLF), which has represented the Sacketts for years, pointed to the absurdity of the Ninth Circuit’s ruling. “The EPA’s own investigation found there is no surface flow from the Sackett’s lot to the lake,” he said. “They’re completely isolated from the lake.”

An appeal to the Supreme Court could well be the path the couple and PLF will take. The Ninth Circuit Court has a long history of having its rulings overturned. And a Sackett victory at the Supreme Court could limit the damage the Biden administration’s new WOTUS rule could inflict on farmers, ranchers, and other landowners.

Author

  • Bonner R. Cohen, Ph. D., is a senior policy analyst with CFACT, where he focuses on natural resources, energy, property rights, and geopolitical developments. Articles by Dr. Cohen have appeared in The Wall Street Journal, Forbes, Investor’s Busines Daily, The New York Post, The Washington Examiner, The Washington Times, The Hill, The Epoch Times, The Philadelphia Inquirer, The Atlanta Journal-Constitution, The Miami Herald, and dozens of other newspapers around the country. He has been interviewed on Fox News, Fox Business Network, CNN, NBC News, NPR, BBC, BBC Worldwide Television, N24 (German-language news network), and scores of radio stations in the U.S. and Canada. He has testified before the U.S. Senate Energy and Natural Resources Committee, the U.S. Senate Environment and Public Works Committee, the U.S. House Judiciary Committee, and the U.S. House Natural Resources Committee. Dr. Cohen has addressed conferences in the United States, United Kingdom, Germany, and Bangladesh. He has a B.A. from the University of Georgia and a Ph. D. – summa cum laude – from the University of Munich.