What bodies of water does the federal government have authority over? Defining Waters of the United States (WOTUS) is the long-standing question of the Clean Water Act (CWA), and the answer is murky. According to statute, WOTUS includes “navigable” bodies of water, but even the definition of “navigable” is unclear.
Since its implementation in 1972, legislation, judicial rulings, and executive rulemaking have brought little clarity and even more confusion and frustration over the definition of “navigable” water. Even previous rulings by the Supreme Court, as in Rapanos v. United States, only offered a split decision of 4-1-4, and introduced Justice Kennedy’s confusing “significant nexus” test. Since its release in 2006, lower courts have argued over what Rapanos opinion to uphold.
The Supreme Court’s first case for 2022 takes yet another look at what waters are navigable. Sackett v. EPA, originating in Idaho, seeks to restrict the definition of “navigable waterway” and it is the second time the court has ruled on this case. The Sackett case was first brought to the Supreme Court in 2012, to discuss if the Sacketts even had a right to bring a suit against the EPA. They did and 10 years later, their actual issue with the EPA made it back to the high court.
In 2004, Sacketts, an Idaho couple, purchased land adjacent to Priest Lake in the Northern panhandle. The EPA claims the property is within 30 feet of a tributary to the lake, making it within their regulatory jurisdiction, and issued a citation in 2008. Consequently, the EPA blocked the Sackett’s ability to build on the property. Their property is in a neighborhood and has two rows of houses separating them from Priest Lake. The EPA takes issue with the supposed wetland across the road from the property. The Sacketts disagree with the authority of the EPA to regulate their land parcel, arguing that the road built between their property and the tributary, precludes them from the definition of navigable waterway.
The case was heard on October 3rd. According to some sources, many of the conservative judges seemed to barrage the Sackett’s attorney with questions, finding issue with the “adjacent” wetland and the possibility that the property could qualify as a wetland. Some experts conclude that the Supreme Court seemed reluctant to narrow the authority of the Clean Water Act. Though the actual feelings of the judges remain to be seen, and the release of the opinion is expected in early 2023.
Many in the agricultural and natural resource communities hope for a tightening of the WOTUS definition, restraining the government’s jurisdiction. Currently, farmers and property owners have no clarity on what is considered a navigable waterway and cannot determine if their land is subject to extreme regulations. One such farmer, quoted a government bureaucrat telling him, “We control all the waters from the Heavens.” This is entirely untrue and it is time the court removed the polluting confusion around the CWA, and helped the many citizens who are stuck in the bog of government bureaucracy.