The U.S. Supreme Court will hear Sackett v. EPA, a case challenging EPA’s authority and enforcement procedures under the Clean Water Act (CWA), during its 2011-2012 term. The case has broad property rights impacts and important implications for clarifying the jurisdictional reach of the CWA and defining those wetlands subject to federal authority.
In Sackett, EPA ordered property owners to restore an active building site to its original condition after determining it was a protected wetland, despite having no direct hydrological connection to a body of water. According to EPA and lower courts, the only way to dispute the order was to seek a CWA wetlands permit-the cost of which would exceed the value of the property-or defy the order and face penalties of up to $32,500 per day. The Supreme Court will consider whether such an owner has a constitutionally-protected right to demand judicial review of these determinations under the CWA.
NMHC has joined with a diverse coalition of industry stakeholders to submit an amicus brief to the Supreme Court supporting the Sackett’s position.
UPDATE MARCH 2012: Supreme Court Rules in Favor of Property Owners
In a victory for property owners, on March 21, 2012, the U.S. Supreme Court issued a unanimous ruling against the EPA and in favor of the property owners. Specifically, the court rejected EPA’s current compliance procedures and ruled that the property owners had a constitutional right to seek judicial review of the compliance order. The case could also have repercussions beyond the CWA, and affect EPA’s authority under a number of statutes with similar enforcement provisions.
This marks the Supreme Court’s third CWA compliance case since 2001, and underscores the lack of legislative and regulatory certainty regarding federal CWA jurisdiction. Notably, in a concurring opinion, Justice Alito stated that "real relief requires Congress to do what it should have done in the first place: provide a reasonably clear rule regarding the reach of the Clean Water Act."
The Supreme Court has twice before rejected a broad interpretation of federal CWA jurisdiction. In 2001, the Court ruled that the U.S. Army Corps of Engineers (Corps) does not have jurisdiction over non-navigable, isolated wetlands. See Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001). Here, the Court upheld the states' traditional control over land and water use, holding that the Corps' authority is limited to navigable waters that cross state boundaries.
In 2006, the Supreme Court issued another ruling on the matter, this time holding that the Corps exceeded it authority under the CWA when it denied two Michigan developers permits to build on isolated wetlands that are only linked to larger bodies of water through man-made drainage ditches. See Rapanos v. United States & Carabell v. United States, 547 U.S. 715 (2006).
Despite these rulings, there has been a series of inconsistent rulings by lower courts on this issue. To resolve the confusion, EPA and the Corps issued a proposed guidance document in April 2011 that sets forth the regulatory philosophy of the federal agencies that will support permitting decisions, enforcement and jurisdictional determinations related to the CWA. This latest guidance would supersede earlier guidance issued in 2003 and 2008 that have been the source of ongoing litigation.
NMHC has long opposed efforts to expand the reach of federal wetlands requirements and will continue to advocate for state and local control of water resources and clarification of the CWA’s jurisdictional reach.