In a decision that could have major ramifications for the scope of the Clean Water Act, the Supreme Court ruled against the Environmental Protection Agency (EPA) in a dispute with Idaho landowners in Sackett v. EPA.
The decision significantly curtails the EPA’s authority to regulate certain wetlands that qualify as “waters of the the United States” (WOTUS) under the Clean Water Act.
The case centers around the Sackett family, who began building a home on a lot in a residential neighborhood near Priest Lake, Idaho. After obtaining building permits, the Sacketts started placing sand and gravel fill on the lot but were ordered to stop work by the EPA. The EPA asserted the land the Sackett family was building on contained wetlands subject to protection under the Clean Water Act. The family sued the federal agency, arguing jurisdiction under the Clean Water Act did not extend to their property.
Sackett v. EPA, and legislative developments surrounding the WOTUS definition and the Clean Water Act, have been closely monitored by housing interest groups. Since the Supreme Court case was centered on the Clean Water Act and major elements of the recently published definition of WOTUS, a decision in favor of the Sackett family has the potential to undermine and overturn the new WOTUS definition.
The WOTUS rule, redefined by the EPA in December 2022, would add an additional step in the regulatory process for builders and developers. As part of the process, the groups would be required to determine whether isolated wetlands, ephemeral streams, or human-made drainage features are “federally jurisdictional.”
Under the WOTUS rule, a federal regulator would apply the “significant nexus test” to determine whether a feature significantly impacted the “integrity of traditional navigable water.” The NAHB, one of several housing interest groups that has voiced opposition to the rule, has said the nexus test is “extremely difficult” to apply consistently and the rule would “radically” extend areas in which builders would need to get federal permits.
In an opinion authored by Justice Samuel Alito, the Supreme Court found the EPA’s interpretation of the wetlands covered by the Clean Water Act “inconsistent” with the law’s text and structure. The Supreme Court’s ruling reversed a decision from the U.S. Court of Appeals for the 9th Circuit, which sided with the EPA.
“The [Supreme Court] decision represents a victory against federal overreach and a win for common-sense regulations and housing affordability,” NAHB chairman Alicia Huey said in a statement on behalf of the organization. “The ruling will likely affect the Biden administration’s new decision of waters of the U.S. that gave the federal government jurisdictional authority under the Clean Water Act over certain isolated wetlands, ephemeral streams, or even human-made drainage features, like roadside ditches.”
The National Multifamily Housing Council (NMHC) and National Apartment Association (NAA), two groups that also have been in opposition to the new WOTUS definition and rule, applauded the Supreme Court’s ruling in Sackett v. EPA. In a joint statement, the organizations said the decision provides “long-awaited certainty” for property owners and housing providers and curbs federal overreach.
“After years of litigation, the Court unanimously agreed that federal authority was lacking in this case, and this ruling limits the universe of properties subject to costly and time-consuming federal permits to develop or redevelop housing,” NMHC and NAA said in a joint statement. “Those additional hurdles would have created permitting delays, added development costs, and created additional legal risks that would exacerbate housing challenges in communities across the country.”
With the decision impacting several parts of the WOTUS rule, Huey called for the implementation of a “new durable and practical definition of WOTUS that will truly protect our nation’s water resources without infringing on states’ rights and triggering additional expensive, time-consuming permitting and regulatory requirements.”
Since published in December 2022, the rule defining a definition for “waters of the United States” has been scrutinized by agricultural and housing interest groups. A federal judge in Texas blocked the WOTUS rule from taking effect in Texas and Idaho, and a judge in North Dakota blocked the rule in 24 additional states. The House and Senate have both expressed support for a rescindment of the rule, but those efforts have been vetoed by President Biden.