Wetlands in danger at the Supreme Court

The Sackett property is located approximately 300 feet from Idaho’s Priest Lake, known for its clear waters. (Photo: Lee Stone, Flickr, CC BY-NC-ND 2.0)

In 1972, Congress passed the Clean Water Act, the first major federal regulation to protect United States waters, or “WOTUS”. The rules that define WOTUS, however, have often been disputed over the years. Now, the Supreme Court case Sackett v. EPA brings the waters of United States rules back to court. Pat Parenteau, professor emeritus of law at Vermont Law School, joins host Bobby Bascomb to discuss how the case could influence national policy.


DOERING: From PRX and Jennifer and Ted Stanley Studios at the University of Massachusetts Boston, this is Living on Earth, my name is Jenni Doering.

BASCOMB: And I’m Bobby Bascomb.

In 1972, Congress passed the Clean Water Act, the first major federal regulation to protect United States waters, or “WOTUS”. Years later, the EPA set rules for when various bodies of water — like streams, wetlands, lakes, and ponds — would be protected by law. These rules have sometimes been difficult to navigate and subject to revisions. Notably, in 2015 the Obama administration expanded federal protections to include approximately 60% of the nation’s waterways. The Trump administration then proposed a narrower, less protective standard that was challenged in court and ultimately rejected. Now, the United States water rule is back in court with the Supreme Court case Sackett v. EPA. For more on this case and what it could mean for national politics, we are now joined by Pat Parenteau, professor emeritus of law at Vermont Law School. Pat, welcome back to Living on Earth!

The Environmental Protection Agency maintains that the Sackett property is located on a wetland and therefore subject to federal jurisdiction. The Sacketts have challenged that claim in court for the past fourteen years. (Photo: Napoleon Benito, Flickr, CC BY-NC-ND 2.0)

PARENTEAU: Thank you Bobby, happy to be here! Thus, the Sacketts are a couple who live in northern Idaho. They bought a property adjacent to Priest Lake and they wanted to build a house on that land. And it turns out the property has a wetland on it. And so the EPA issued a compliance order telling the Sacketts they had to stop and apply for what’s called a Corps of Engineers permit. And instead of complying, the Sacketts sued, saying the Sacketts should be able to go to court and challenge the assertion of federal jurisdiction. And in the first round of that case, the United States Supreme Court ruled in favor of the Sacketts and gave the Sacketts the right to go to federal district court in Idaho. And then the Idaho District Court ruled in favor of the EPA and said, “Yes, it’s a wetland because it’s both adjacent to Priest Lake – because it’s not is only 300 feet away—and adjacent to an unnamed tributary, which empties into a creek, which then empties into the lake.The Sacketts then took the case to the Ninth Circuit Court of Appeals, and the Ninth Circuit upheld the district court. But the Ninth Circuit limited its decision to the fact that the wetland was adjacent to this unnamed tributary. It did not address the question of whether it would fall within the jurisdiction of the mere fact that it was adjacent to the lake. And the Ninth Circuit added that the basis on which the EPA can regulate this wetland is due to what we call a “significant connection”. So this significant connection test to determine when a wetland is subject to the Clean Water Act has become the focus of very many cases across the country.

BASCOMB: Now, from what I understand, the EPA is trying to clarify the rules so that they are easier to understand. Despite this, the Supreme Court has decided to hear this case now. What do you think of this timing?

PARENTEAU: The EPA and the Corps are right now as we speak, trying to finalize a rule to replace the Trump rule. And the Supreme Court could have stopped its hand and waited to see exactly what this new rule said about all these tests. Frankly, that would have been a much better way to approach the question than looking at it through the very narrow lens of that one property in northern Idaho, wouldn’t it? But the Supreme Court didn’t hold its hand and we don’t expect it to. We expect a decision in the Sackett case probably next year in the spring. You know, again, just the way we’ve seen the court show up last quarter before the EPA passing the greenhouse gas regulations, we have a very militant Supreme Court holding out the hand and taking a case to look at this crucial question of when are wetlands protected at the same time the agencies are trying to finalize a rule that will at least help clarify this very confusing situation we have: clarifying what adjacency, clarify what a significant connection means, clarify which waters are unprotected and which waters are protected. So that’s the kind of tribunal we have now, you know, a tribunal that’s not willing to wait for the agencies to finally resolve any of these issues. They’re going to step in and make some sort of decision.

While protecting wetlands is at the heart of the Sackett case, environmental experts say the Supreme Court’s decision in the Sackett case could have broader implications for the protection of all waters in the United States. , or WOTUS. (Photo: Matt Wade, Flickr, CC BY-SA 2.0)

BASCOMB: Well, of course, there’s a lot more at stake here than just this family and whether or not they can build a house wherever they want. What are the possible ramifications if the court sides with the Sacketts? How could this decision be interpreted more broadly?

PARENTEAU: Yes, this has major implications for wetland protection and water quality in general, even though this case involves a wetland on a property in Idaho. The underlying question, really, and the bigger question is how far can Congress go in regulating activities that impact water quality? And we know that conservative justices are skeptical, both about the agencies’ power to regulate broadly, but also – and this was touched on a bit in the argument – also about the power of Congress, under the Constitution, to regulate activities under the Commerce Clause of our United States Constitution.

BASCOMB: You know, President Biden’s Supreme Court Justice, Justice Ketanji Brown Jackson will be on the bench for this case, but the court still has a very strong conservative majority. Based on what you’ve seen so far, how do you think Sackett vs. EPA will play out here?

PARENTEAU: Well, to get into the argument, most of us who have followed this issue of the Clean Water Act closely and, of course, this new Supreme Court feared a very bad decision for the protection of wetlands. and water quality. Coming out of the argument, we were surprised at how difficult the questions were for Sackett’s attorney. Even conservative justices were skeptical of some of the arguments made by the Sacketts. The three justices in the sort of liberal wing, if you will, of the court, and that would include Justice Jackson, who was very, very active, by the way, in argument, we have to count those three in favor maintaining federal jurisdiction. If we don’t have them, then there’s no chance. And so you need two more. And my reading of the argument is that the judges in the middle will be Roberts, Judge Barrett, and potentially even Judge Cavanaugh. All three were asking the kinds of questions that seem to leave the door open to some form of federal regulation of wetlands when near a large lake system. And there were a lot of questions about—legitimate questions, by the way—how is a landowner supposed to know if they own property that is subject to federal law? So I wouldn’t be surprised to see a more detailed opinion, which we’ll have to wait to see, how close the wetland and the larger body of water must be not only geographically, but how are they connected? How does activity on the property containing the wetland affect the water quality of the larger water body? That’s what I think we’re going to see: a new test probably to try to give landowners an idea of ​​when they can expect to be regulated.

During the last three presidential terms, the precise scope of WOTUS, protected by the Clean Water Act of 1972, has been hotly debated. (Photo: Tim Lumley, Flickr, CC BY-NC-ND 2.0)

BASCOMB: Pat Parenteau is professor emeritus of law at Vermont Law School. Pat, thank you very much for your time today.

PARENTEAU: Well, thank you very much, Bobby. It was a pleasure.


United States Supreme Court | “Transcript of Sackett Oral Argument v EPA: 2022-03-10”

Environmental Protection Agency | “Summary of the Clean Water Act”

Environmental Protection Agency | “Clean Water Rule: Definition of “United States Waters”: 2015″

Environmental Protection Agency | “The Navigable Waters Protection Rule: Definition of “United States Waters”: 2020″

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