The Supreme Court said Monday it will consider reining in federal regulation of private property under the controversial Clean Water Act.
The justices agreed to hear a business-backed appeal from Chantell and Michael Sackett, who have wanted to build a home close to Priest Lake in Idaho for 15 years and won an earlier round in their legal fight at the Supreme Court.
The Environmental Protection Agency ordered work on the Sackett’s property halted in 2007, determining that part of it was a wetlands that could not be disturbed without a permit.
The new court case, to be argued in the fall, tests the reach of the Clean Water Act beyond rivers, lakes and streams. Under an opinion written by Justice Anthony Kennedy in 2006, regulators can block development on properties far from waterways as long as they prove a significant connection to the waterways.
Kennedy said the wetlands must “significantly affect the chemical, physical, and biological integrity” of nearby navigable waters to come under the Clean Water Act.
No other justice joined Kennedy’s writing, and four conservatives wrote that they would allow regulation only if there was a continuous surface connection from the wetlands to the lake, river or stream. There is no such connection on the Sackett’s property.
Among the four were Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito. They now have three colleagues on the right, Justices Neil Gorsuch, Amy Coney Barrett and Brett Kavanaugh, who took Kennedy’s seat when he retired in 2018.
Jon Devine, director of federal water policy at the National Resources Defense Council, said the court had agreed to hear a case that could “gut our ability to protect wetlands and other waters. It’s a threat to the clean water our communities depend on for drinking, swimming, fishing and other uses.”
In 2005, the Sacketts paid $23,000 for a .63-acre lot near the lake. They decided to start building a modest, three-bedroom home early in 2007.
They had filled part of the property with rocks and soil, in preparation for construction, when federal officials showed up and ordered a halt in the work. The case bounced around the courts for more than a decade.
The federal appeals court in San Francisco upheld the EPA’s determination in August, finding that the agency was right to conclude that swampy areas on the Sacketts’ property were 300 feet from the lake and 30 feet from an unnamed waterway that flows into the lake.
The Sacketts’ own consultant had similarly advised them years ago that their property contains wetlands.
The U.S. Chamber of Commerce and the National Association of Homebuilders are supporting the Sacketts at the Supreme Court.