BONNER COUNTY, Idaho–Meet Michael and Chantell Sackett.

They are the Sacketts in Sackett v. Environmental Protection Agency.

They persisted in their long, expensive battle in the federal-district court in Idaho, where they lost; the San Francisco-based federal-appellate court, where they lost; and most recently in the U.S. Supreme Court, where they won.

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Their challenge concerns how the Environmental Protection Agency, or EPA, and the U.S. Army Corps of Engineers have enforced the Clean Water Act, or CWA.

The high court reined in both the EPA and the Army Corps.

Justice Samuel Alito–in an opinion joined by Chief Justice John Roberts, and Justices Clarence Thomas, Neal Gorsuch, and Amy Coney Barrett–notes that the Clean Water Act “prohibits the discharge of pollutants into only ‘navigable waters,’ which it defines as ‘the waters of the United States, including the territorial seas.'”

How did that affect the Sacketts?

Well, they bought a small lot in Bonner County, Idaho, where they sought to build a modest home near Priest Lake. A few months after they began backfilling the land with dirt and rocks, the EPA said their backfilling violated the Clean Water Act, because their land had protected wetlands, Alito writes. The EPA ordered the Sacketts immediately to restore the land according to an EPA plan.

If the Sacketts didn’t do so, they faced fines of more than $40,000, Alito writes.

That’s more than $40,000 per day.

Yes, per day. Not in total. Per day.

How did the EPA claim the Sacketts’ land had protected wetlands?

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Alito’s next two paragraphs may make you laugh, shake your head, or both.

The EPA said “the waters of the United States” include “‘(a)ll … waters’ that ‘could affect interstate or foreign commerce,’ as well as ‘wetlands adjacent’ to those waters.” The EPA defined “‘adjacent’ … to mean not just ‘bordering’ or ‘contiguous,’ but also ‘neighboring.'” The EPA “instructed officials to assert jurisdiction over wetlands ‘adjacent’ to non-navigable tributaries when those wetlands had ‘a significant nexus to a traditional navigable water.’ A ‘significant nexus’ was said to exist when ‘”wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity”‘ of those waters. In looking for evidence of a ‘significant nexus,’ field agents were told to consider a wide range of open-ended hydrological and ecological factors.

“According to the EPA, the ‘wetlands’ on the Sacketts’ lot are ‘adjacent to’ (in the sense that they are in the same neighborhood as) what it described as an ‘unnamed tributary’ on the other side of a 30-foot road. That tributary feeds into a non-navigable creek, which, in turn, feeds into Priest Lake, an intrastate body of water that the EPA designated as traditionally navigable. To establish a significant nexus, the EPA lumped the Sacketts’ lot together with the Kalispell Bay Fen, a large nearby wetland complex that the (EPA) regarded as ‘similarly situated.’ According to the EPA, these properties, taken together, ‘significantly affect’ the ecology of Priest Lake. Therefore, the EPA concluded, the Sacketts had illegally dumped soil and gravel onto ‘the waters of the United States.'”

Let’s assume the Clean Water Act should cover all of those things. Regardless of whether you agree that it should, the question before the court wasn’t whether the Clean Water Act should cover all of those things but whether it does.

The EPA said it does. So did the federal-district court in Idaho, and the San Francisco-based federal-appellate court.

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Not so fast, the high court in effect said in holding in favor of the Sacketts: The “CWA’s use of ‘waters’ encompasses ‘only those relatively permanent, standing or continuously flowing bodies of water “forming geographic(al) features” that are described in ordinary parlance as “streams, oceans, rivers, and lakes.”‘”

Although “some wetlands qualify as ‘waters of the United States,'” Alito writes, “they must be indistinguishably part of a body of water that itself constitutes ‘waters’ under the CWA. … Wetlands that are separate from traditional navigable waters cannot be considered part of those waters, even if they are located nearby.”

And although “temporary interruptions in surface connection may sometimes occur because of phenomena (such as) low tides or dry spells, … the CWA extends to only those wetlands that are ‘as a practical matter indistinguishable from waters of the United States,'” Alito writes. The CWA extends to such an “adjacent wetland()” only if it is “a relatively permanent body of water connected to traditional interstate navigable waters” and has “a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”

Dr. Randy Elf wonders whether $40,000 per day would have run afoul of the Eighth Amendment’s ban on excessive fines.

COPYRIGHT ç 2023 BY RANDY ELF