Recently, the Supreme Court has issued major rulings on immigration enforcement, abortion, elections and freedom of religion and freedom of speech protections for artists. So of course, I want to talk to you about Idaho house construction and the definition of the word “water.”
In 2007, Michael and Chantell Sackett started to build a house on some land they owned in Idaho, including delivering some sand. They were surprised when the Environmental Protection Agency (EPA) sent them a notice that they would be required to remove that sand and restore the land to its original state under the provisions of the Clear Water Act (CWA). Rather than pay the daily $40,000 fines, they took the case to court, and the Supreme Court heard oral arguments (Justice Jackson’s first) last October.
The Sacketts’ side of the argument is simple: The Clear Water Act forbids dumping pollutants (including sand) into “navigable waters.” They weren’t trying to build on navigable water, but on a lot that was 300 feet from the nearest body of water (Priest Lake) with no connection to it. In fact, their plot has a road and a row of houses in between it and the shore. The Sacketts believed that only land with a continuous surface flow to protected water should be covered by the CWA.
The EPA, however, insisted that though the Sacketts’ land isn’t navigable by boat, it does have an impact on nearby navigable waters. If it could not bar the dumping of pollutants into watersheds nearby protected waters, argued the EPA, then the CWA would practically have no effect at all. Rather than the rule favored by the Sacketts, the EPA prefers the “significant nexus” test, which says any land that significantly affects the quality of navigable water can be regulated.
Put aside, for a moment, your instinctive reaction as to whether the Sacketts’ or the EPA’s argument made the most sense. While this case will be important for US environmental policy going forward, we don’t need to follow the justices' arguments over the meaning of the word “adjacent.” The real meat in Sackett vs. EPA is a larger question: Who’s responsible?
When the EPA extrapolated from the CWA’s actual text to cover the Sacketts’ land, they did so with no guidance from Congress. Justices Neil Gorsuch and John Roberts pointed out this concern: How vague does the connection to navigable water have to be? Technically, if you dump a handful of gravel at your feet right now, it will eventually affect a waterway. Is there some maximum number of links in the chain of causality beyond which the EPA’s authority doesn’t reach, or does the CWA let them regulate, in theory, every piece of American land?
Many are lamenting the Court’s verdict in Sackett based solely on its environmental impact. The Court is being condemned – by some members of Congress, even – for being anti-science, politically influenced, anti-environmental and more. But those attacks miss the fact that this decision was unanimous. Aside from a disagreement over whether an “adjacent” wetland means one ‘connected to’ or ‘close by’ waters of the United States (headed by those ideological twins Brett Kavanaugh and Elena Kagan), the justices were united in rejecting the significant nexus test – united in saying that the EPA couldn’t regulate land like the Sacketts’ without a grant of authority from Congress.
If you think that the Sacketts’ building should have been stopped, or that every wetland near protected water should be regulated, then good! America’s natural resources are worthy of conservation, and public interest like yours drives those efforts. But only Congress has the power to do something about that – that’s their job.
Don’t let Congress duck their responsibilities by blaming agencies or the Court. Ask your members of Congress to show a little grit.