On May 25, 2023, the United States Supreme Court decided Sackett v. EPA, a case concerning the outer limits of the Clean Water Act (“CWA”). The CWA grants the Environmental Protection Agency (“EPA”) authority to regulate water quality in the Nation’s rivers, lakes and streams. But discerning the precise boundaries of the CWA has led to conflicts between private property rights and the reach of the federal government.

The Sackett case exemplifies this tension, and the high court’s decision in this case greatly constrained the authority of the EPA with respect to wetland regulation. The decision of the Court, while rooted in fairly technical legal analysis, greatly reduces Federal control over private property while providing property owners and developers with more autonomy in how they utilize their property. For property owners and developers within the State of Florida, this decision may result in properties that were formerly subject to federal regulatory controls to now being cleared for development. 

Factual Background

The Sackett’s acquired a small lot located in Bonner County, Idaho back in 2004, with the intention of constructing a small residence on the lot. After beginning to backfill the wetland areas of the lot, the EPA notified the Sacketts that they were in violation of the CWA and could face over $40,000.00 per day in penalties if they did not comply. The EPA alleged that the construction of the Sackett’s residence negatively impacted adjacent wetlands that fed into a navigable body of water.

“Waters of the United States” 

The Sackett case turned on whether the construction of the Sackett residence adversely impacted “waters of the United States,” which seems like a fairly straightforward term at first glance, but whether certain water bodies constitute “waters of the United States” depends on whether the water body is “navigable,” a phrase that has its own specific definition depending on context. 

The EPA argued that the backfilling of the wetlands on the Sackett property significantly affected “waters of the United States,” thereby falling under the regulatory purview of the CWA. The EPA argued that the work done on the Sackett property negatively impacted the ecology of Priest Lake. Priest Lake is a navigable body of water fed by a non-navigable creek; this creek is connected to a small tributary located across the street from the Sackett property. This, together with the Sackett property’s proximity to a larger wetland system known as the Kalispell Bay Fen, was the basis for the EPA claiming regulatory jurisdiction over the Sackett property. 

The Court did not find this connection very compelling and instead held that in order for the EPA to claim that wetlands fall under the reach of the CWA, the EPA must prove:

• that the water body in question, whether it’s a lake, stream, river or ocean, must be “waters of the United States,” i.e., that the water body is relatively permanent and is connected to traditional interstate navigable waters; and
• that the wetland has a continuous surface connection with that water body making it difficult to determine where the water ends, and the wetland begins.

In other words, the Court found that the wetlands located on the Sackett property did not bear a sufficient connection to the “waters of the United States,” which stands as a departure from the EPA’s interpretation of the CWA. 

Why you should care about this decision

By now, you may be wondering why anyone in Southwest Florida should care about whether creeks and wetlands in Bonner County, Idaho, constitute “waters of the United States”? Well, the reason is simple, Florida has 11 million acres of wetlands, more than any other state in the lower 48, meaning that large swaths of lands that formerly enjoyed protection under the CWA may no longer be subject to Federal regulations, which would lower development costs for many parcels within the State.

In terms of environmental impacts, Florida’s wetlands, which provide valuable habitat and flood mitigation, may no longer face as stringent protections as they enjoyed previously. It will be interesting to see how the effects of the Sackett decision manifest here locally.