Last week, a thoroughly confused and grumpy Supreme Court heard oral arguments in Sackett v. EPA, which once again addressed the reach of government permitting power under the 1972 Clean Water Act. In 2004, Michael and Chantell Sackett purchased a 0.63 acre lot in an Idaho housing subdivision, separated by three hundred feet from Priest Lake—a large, navigable body of water—by a major road and other homes. In 2007, the Sacketts applied for a building permit, which the Army Corps of Engineers denied on the grounds that their lot was properly classified as a wetland, which under the CWA meant the Sacketts were required first to get a permit from the Corps. The designation as a wetland came from a May 2008 Corps study by the EPA’s field ecologist, John Olson, which “observed that all portions of the Sackett property where native soil was removed but fill material had not been placed . . . were inundated or ponded/saturated to the surface.”
This legal tangle begins with a key coverage provision of the CWA:
(7) The term “navigable waters” means the waters of the United States, including the territorial seas.
The territorial seas extend three miles from the low tide line seaward for three miles.
Section 404 (a) of the act then states:
The Secretary [of Interior] may issue permits, after notice and opportunity for public hearings for the discharge of dredged or fill material into the navigable waters at specified disposal sites.
The initial set of regulations under Section 404(a) closely tracked the statutory definition so that the navigable waters of the United States included just those bodies, and not the lands or wetlands adjacent to them, which were not susceptible to navigation. But the 1975 case of Natural Resources Defense Council v. Callaway turned that definition upside down in a one-page opinion that declared that Congress, by using the phrase “ ‘the waters of the United States, including the territorial seas,’ asserted federal jurisdiction over the nation’s waters to the maximum extent permissible under the Commerce Clause of the Constitution. Accordingly, as used in the Water Act, the term is not limited to the traditional tests of navigability,” without saying exactly how far it did extend. New regulations quickly answered that question by defining
“waters of the United States” to include “wetlands” that are “adjacent” to traditional navigable waters and their tributaries. “Wetlands” were defined as “areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.
Those regulations in turn were sustained “as a permissible interpretation of the act” in a vigorous opinion by Justice Byron White in United States v. Riverside Bayview Homes (1985). The Army Corps read its regulatory grant of power to the maximum when in 2008 it ordered the Sacketts to restore the site to its original condition, adding that if they failed to do so, it would impose civil and administrative fines of over $37,500 per day. When Sackett first came before the US Supreme Court in 2012, the justices voided the fine on the ground that its size effectively blocked all judicial review of the administrative action.
A “Wetland” in Name Only
Ten years after Sackett I, the case is back before the court, which now views its sole task as how to best clean up the uncertainties latent in the extant regulations. The court’s discussion of the issues was painful, largely because all the justices fixated on the question of whether the word “adjacent” in the regulation meant next door or nearby. There was no attempt to look more closely at the facts or examine more critically the orgy of deference that drove the 1985 decision in Riverside Bayview Homes.
These artificial blinders show just how far modern administrative laws can stray from common sense. The initial query is why the Sacketts should be singled out for special treatment that had not been demanded of their neighbors when no ordinary speaker of English would call a dry plot of land a “wetland.” Moreover, the obvious concern of the CWA is with pollution, yet no member of the court blinked when Damien Schiff, the Sacketts’ lawyer, noted that not a single drop of any pollutant had ever moved from the Sackett site into Priest Lake’s waters. Why then, has the government been so eager to spend fourteen years (and counting) hammering into submission some unimportant landowner in a case with no practical ecological consequences at all?
Everyone could have been spared a lot of misery if the government lawyers and the courts had first looked more closely at the Olson findings that first branded the Sacketts’ property a wetland. The “inundation and saturation” phrase was strategically inserted in his report to link his findings to the regulation. But at no point did he say that the land in its original state was a wetland. It was only after the initial construction, which removed and did not replace the topsoil, that water gathered. But if that initial construction makes for a wetland, then every building site in Idaho becomes a wetland when the first shovelful of dirt is turned.
Nonetheless, none of the justices queried this simple factual blunder. Instead, it was off to high theory when new justice Ketanji Brown Jackson asked Schiff, “Why would Congress draw the coverage line between abutting wetlands and neighbor[ing] wetlands when the objective of the statute is to ensure the chemical, physical, and biological integrity of the nation’s waters?”
Put aside the point that it was the Department of the Interior’s regulations, not Congress, that referred to wetlands. The more insistent question is how “adjacent” can be stretched to mean separated by a major road. And it is utterly pointless in both theory and practice to ask which wetlands—adjacent or nearby—are covered by the regulation when the Sacketts’ land is not a wetland at all. No one would say that two houses on opposite sides of the street were adjacent. Why, therefore, is any form of biological integrity in play, except by an act of faith, when the Sacketts’ land is wholly separated from Priest Lake? This astonishing finding, which had been blessed by the Ninth Circuit, should have been rejected out of hand in the Supreme Court.
A Blunt Tool—And an Ineffective One
The objection here is especially ironic given the obvious tension between Sackett and West Virginia v. EPA (2022), which revived the “major questions” doctrine: “given both separation of powers principles and a practical understanding of legislative intent, the agency must point to ‘clear congressional authorization’ for the authority it claims.” If a regulation that leaps from fossil fuels to renewable fuels flunks that test, then so should one that treats wetlands as navigable waters, or indeed as waters of any kind. Administrative takeover of wetlands should be undone as soon as possible.
Nor is it remotely credible to claim, as Justice Kagan does, that Section 1344(g)(1) of the CWA authorizes the direct regulation of wetlands when, by its own terms, that provision is not jurisdictional. It only kicks in when a state wants “to administer its own individual and general permit program for the discharge of dredged or fill material into the navigable waters,” at which point such state must account for impacts on “adjacent wetlands,” which would not include the Sacketts’.
In response, defenders of the current law will claim that the entire system of environmental protection will fall apart without this extra regulatory tool. Not so. The current regime unwisely invites abusive government behavior that traps innocent landowners in decadelong fights irrelevant to the control of pollution. Nor does the correct reading of the CWA strip the EPA of its ability to deal with cases of actual pollution. An extensive body of public nuisance law is still available to both the government and private parties when pollution poses either an actual or imminent threat to public bodies of water, but no such action would ever lie against the Sacketts when the threat of pollution is at best a one-in-a-million shot. If the government desires to acquire key lands, it could use its eminent domain power to acquire and then manage wetlands it truly prizes.
A Better Standard
The bottom line: the current wetlands regulation is bad policy. It requires the same level of scrutiny for remote actions like the Sacketts’ as it does for the actual dredging and filling of a navigable body of water. Actions on navigable waters cause dislocation to transportation, recreation, water consumption, and fishing, each time the work takes place, which makes permitting a sensible legal response. The actions on wetlands cause dislocations only in a small fraction of cases, and those actions should be stopped only when they are shown to be highly likely to have adverse effects on navigable waters. Permitting in that context leads to the kind of overkill found in the Sackett case.
As a matter of institutional design, the original, pre-1975 Callaway regime, which relies on a tripartite combination of statutory, common-law, and condemnation powers, works far better than the current regime. Unfortunately, both the court and the environmental movement look exclusively at the risk of the underenforcement of environmental norms, ignoring the far greater risk of overenforcement in cases like Sackett. That structure cries out for legislative, administrative, and judicial overhaul.