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Supreme Court cleans up the Clean Water Act

Updated: Jul 21, 2023

Thanks to the perseverance of a Northern Idaho couple, the Clean Water Act (CWA), is less polluted by bureaucratic expansion. Last week, the Supreme Court ruled (5-4) in favor of Michael and Chantell Sackett in their 15-year case versus the Environment Protection Agency (EPA). The Court’s decision brings clarity to the long-disputed definition of adjacent waters, determining that a continuous surface connection must exist for adjacent wetlands to be included within the authority of the Clean Water Act.

This is not a win for property owners and a loss for environmental advocates. This is a win for all citizens who want to know if their actions are legal. Basic questions can now be answered, like “Can I move this pile of dirt from one side of my property to another?” or “Can I drain this puddle?” The CWA can still be ecologically beneficial and now, citizens know where they stand with the CWA.

Since the adoption of the Clean Water Act in 1972, the EPA and the Army Corps of Engineers have leveraged the ambiguous wording within the act to expand bureaucratic authority. Phrases and words like ‘Waters of the United States (WOTUS)’, ‘navigable’, ‘waters’, ‘significant nexus’, and ‘adjacent’ are all used to describe the scope of the legislation. Citizens are left wondering if the water on or near their property is subject to the CWA and according to the EPA it probably is. Decades of legal disputes reflect the confusing nature of the act.

Since the passing of the CWA over fifty years ago, the environmental bureaucracy has expanded immensely. The EPA’s interpretation of navigable waters has grown to include any tributary that contributes to a navigable waterway and adjacent could be anything touching or in near proximity, with no specific distance used to describe proximity. With these continually expanding definitions millions of acres of private property have been and could be commandeered into the EPA’s jurisdictions, crippling the importance of property rights and the authority of the individual States to regulate.

The Sacketts, stood up to the EPA’s expanding and illegal application of the CWA. The couple argued that their home site, separated from Priest Lake by a row of homes and a dirt road, was not adjacent to a navigable water. Three justices agreed with this conclusion, determining that to be adjacent a continuous surface connection must be present.

Two more justices also argued that Priest Lake itself wouldn’t even fall into the category of navigable by the historical definition, and so the EPA should not even apply CWA to the lake, let alone argue for an adjacent wetland. These five justices in the majority opinion oppose the EPA’s broad interpretation of the CWA.

For decades, citizens have been left in precarious positions, grappling with the ambiguous definitions. If a person’s property is under the authority of the CWA, violations could cost in excess of $60,000 per violation per day and/or be accompanied with criminal penalties. To prevent these violations citizens could pay thousands of dollars in private consulting fees to determine if the CWA might apply, but these are not official rulings. Or citizens could approach the bureaucratic entities to ask if the CWA applies and request a permit. However, the answer is often yes under their broad interpretations, and the permits are slow from the Army Corps of Engineers.

No doubt, the ecological benefits of the CWA are immense, but leaving citizens subject to these ambiguous definitions can be economically and mentally catastrophic, as they lose their property rights and even their livelihoods. It is time for the EPA and Army Corps of Engineers to have a stricter definition that fits within the legal limits of the CWA. Thanks to the patience of a Northern Idaho couple, the Supreme Court’s recent opinion tightens these definitions and removes some of the CWA’s bureaucratic pollution, providing much needed clarity to citizens throughout the country.

Madi Clark on KTVB NewsChannel 7 in Boise:

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