The U.S. Supreme Court has agreed to take up a pivotal private property rights case that will either confine or expand the federal government’s reach over private land like America’s farms, ranches, homes, private development, and mining operations. This case comes before the Court as the Environmental Protection Agency is in the middle of rewriting regulations that will vastly expand the government’s reach over private land.

Before getting into the specific issues of the case – Sackett v. EPA – it’s important to understand some legal history and a few relevant aspects of the Clean Water Act.

The Court’s Tests: 

The Clean Water Act is concerned with regulating discharges into bodies of water. It establishes federal jurisdiction only over “navigable waters,” defined as “waters of the United States.” This makes clear that only certain waters were meant to be covered by the statute — and certainly not most of the landmass of the United States. Yet through decades of legal battles and regulatory actions, there are essentially two approaches for defining “waters of the United States” (WOTUS) and the related scope of regulatory authority. 

  1. The more expansive view, favored by liberal justices and Democrat administrations, reads out the statutory requirement of “navigable waters.” It relies on a  “significant nexus” test. Under this approach, the federal government’s reach encompasses waters, no matter how ephemeral or isolated, that either alone or in connection with similarly situated properties, that “significantly impact the chemical, physical, and biological integrity of a traditionally navigable water.”

If that definition seems clear as mud to you, you are not alone. Not only is this test confusing, but the application requires landowners to engage very expensive contractors, engineers and lawyers, solely for the privilege of using and developing their own land. In the event that a landowner gets this expensive assessment wrong, they face serious fines and penalties from the federal government. 

  1. The second, narrower test, favored by conservative justices and Republican administrations, is more faithful to the text of the Clean Water Act. It relies on the concept of a  “continuous surface connection.” Under this approach, the federal government’s reach is limited to “relatively permanent, standing or continuously flowing bodies of water,” i.e., those sorts of bodies of water that bear a resemblance to being navigable, including streams, rivers, or lakes and wetlands that have a “continuous surface connection” to waters subject to the Clean Water Act.  

Now, onto the Sackett case where the issue is how the federal government defines “WOTUS.”

The Set-Up:

If an area is determined to be “a water of the U.S.,” then it falls within the scope of the Clean Water Act and a property owner must get permission through a permit from the federal government before making certain changes to their property. If a property owner fails to get a permit and the federal government determines he should have, then the property owner  can face significant penalties. This is what happened to Chantell and Mike Sackett. 

SCOTUS Round 1:

In 2007, the Sacketts filled in a small parcel of their half-acre lot with dirt and rock to prepare for building their home in Idaho. A few months later, the Environmental Protection Agency  determined the property was a “navigable water” that fell under the scope of the Clean Water Act and demanded they remove the material and restore the land to its original condition. The Sacketts took the issue to the courts and EPA responded by claiming the Sacketts had no right to challenge the decision–they simply had to risk up to 75K in fines every single day. After a years-long legal battle, in 2012 the U.S. Supreme Court unanimously found that the Sacketts did have a legal right to challenge the decision. As the Supreme Court explained, “there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into “voluntary compliance” without the opportunity for judicial review.”

SCOTUS Round 2:

With the high court’s blessing, the Sacketts began their second legal battle, which argued that their property was not a navigable water and, therefore, outside the jurisdiction of the Clean Water Act. As such, they should not be required to get a Clean Water Act permit in order to build. The outcome will hinge on whether the Court adopts the more expansive definition of WOTUS (significant nexus) or the more narrow one (continuous surface). 

The lower courts, including the Ninth Circuit Court of Appeals, adopted the more expansive test and upheld the federal government’s decision and its penalties against the Sacketts. Earlier this week, however, the Supreme Court decided to review that decision to determine whether reliance on the “significant nexus” test was appropriate. 

Why It Really Matters Today:

Beyond potential vindication for the Sackett family, the case may have broad implications for the Biden administration’s efforts to reinstate the more expansive view of WOTUS and, with it, the federal government’s reach. The Supreme Court’s willingness to take up this case could end up being an important check on federal overreach. 

Outside of the courts, America’s farmers, ranchers, developers, landowners and other stakeholders that have been on the frontlines of this fight are feeling a renewed sense of optimism. The Court could stop federal intrusion, shore up landowner liberties, and also provide some long overdue clarity.