2023 Predictions - Sackett v. EPA
It’s a new year so I think it is time for some foreshadowing and potential predictions/ruminations on the environmental landscape for 2023. The US Supreme Court had made some pivotal decisions affecting the environment last year and one case that many are watching concerns wetlands preservation and land development rights: Sackett v. EPA. Michael and Chantell Sackett are at the center of a Supreme Court case that has the potential to upend land development across the United States. In 2007 the Sacketts purchased a lot near Priest Lake, Idaho and started to build a home. Several days after breaking ground, they were told to stop clearing and filling/grading of the lot by the US EPA and Army Corp of Engineers because those entities asserted that the property contained wetlands which are considered “navigable waters of the US” and filling of wetlands without a permit is a violation of the Clean Water Act (CWA). About 6 months after the US EPA’s visit to the property, an official compliance violation was issued, and they were told to restore the site to its pre-construction condition. Violations under the CWA can result in fines of up to $37,500 per day.
The crux of the case is whether the EPA has the authority to regulate the redevelopment of the property. The 1972 CWA regulates the discharge of pollutants to the waters of the United States. It is the regulation that birthed the National Pollutant Discharge Elimination System (NPDES) permitting program and limits development in wetlands unless certain requirements are met. The Sackett v. EPA case was argued in October 2022 and the US Supreme Court is likely to make its decision early in 2023.
As with most judicial matters, the key lies in a definition; in this case, the crux will be about how the courts define or interpret the phrase “navigable waters of the US.” In a 2006 ruling, Rapanos v. the United States, the late Supreme Court Justice Scalia indicated that the phrase should apply to relatively permanent standing or flowing bodies of water such as stream, creeks, river, lakes, etc., and to wetlands with a “continuous surface connection” to the aforementioned water bodies. However, in that same case former US Supreme Court Justice Kennedy opined that a “significant nexus” should exist between the wetlands and the navigable waters, and that the nexus should be assessed with regards to the CWA’s goals. Thereafter, confusion has ensued. The present case before the Supreme Court appears to be asking for a majority clarification of the phrase.
The Florida Department of Environmental Protection (FDEP) regulates dredging and filling of wetlands through the Environmental Resource Permitting (ERP) program. The Florida-led program is stricter than the federal program because it also regulated “isolated” wetlands that fall outside of federal jurisdiction. Wetlands are particularly important to South Floridians due to their ability to reduce the impacts of storm, flooding, and facilitate wildlife preserves. Additionally, wetlands act as a natural filter for removing sediments before it recharges to our underlying aquifer. According to the FDEP, prior to the enactment of the CWA, Florida lost more than half of its wetlands prior to the 1970s. Some of FDEP’s strictest and harshest environmental enforcement action is under the ERP program.
As expected, critics of the Sacketts are pointing out that they are represented by the Pacific Legal Foundation (PLF), which has been described by the Washington Post as a “conservative public interest law firm” and its known backers include the Koch brothers. The PLF is also representing a plaintiff in federal court suing to block the cancelation of federal student loan debt. Supporters of the Sacketts believe that private property rights should be paramount. Conversely, environmental organizations and others are arguing that the courts need to uphold the protections of the CWA through the strictest interpretation of the law to safeguard our natural resources and mitigate the impacts of climate change.
Given the US Supreme Court’s recent opinion, which limited the ability of the EPA to regulate carbon emissions under the Clean Air Act, I believe a favorable ruling on behalf of the Sacketts is highly likely. If so, that may very well result in a scramble by state and local officials to put in place guardrails to preserve wetlands.
If you have questions about land development, environmental contamination, or permitting, please contact me at pceres29@lionpointeng.com.
