Sacketts See Support on Wetlands Case

LINCOLN, Neb. (DTN) -- Numerous agriculture groups, members of Congress, businesses, legal foundations and others have filed amicus briefs in support of Idaho property owners Michael and Chantell Sackett in a Supreme Court case likely to determine how federal agencies define waters of the U.S. and when wetlands are jurisdictional.

Twenty of those briefs were filed in the past week alone, all in support of the Sacketts.

Sometime this fall, the Supreme Court will consider a very narrow question regarding the reach of the Clean Water Act: Whether the U.S. Court of Appeals for the Ninth Circuit in San Francisco used the proper legal test for determining whether wetlands are waters of the U.S.

In particular, the Sacketts have asked the Supreme Court to consider whether the so-called "significant nexus" test is the right method used when it comes to wetlands.

Damien Schiff, senior attorney with the Pacific Legal Foundation who is representing the Sacketts, told DTN that the briefing is expected to last through the summer with oral arguments heard sometime in October or November.

"By my count, we received 28 amicus briefs, which is certainly higher than average and I think does reflect the significance of the issues at play," he said.

"How the court rules here undoubtedly would affect whatever rulemaking the agencies may wish to proceed with."

The Sacketts currently are not granting media interviews.

In a statement provided to DTN by the Pacific Legal Foundation, however, the couple said they hope the Supreme Court will consider how property owners across the country are affected by the Clean Water Act.

"We've spent 15 years of our lives fighting the illegal land grab under the Clean Water Act," the Sacketts stated.

"Our property is still vacant, and our rights are still violated. It's high time to finish the job we started -- to end our personal nightmare and ensure that no other Americans suffer the same predatory government abuse."

As of Thursday, the EPA has not filed an opening brief in the case and does not comment on pending legal cases.

In an opening brief filed on April 11, the Sacketts said their 0.63-acre tract of land in Priest Lake, Idaho, never has contained wetlands and that the significant nexus test used by EPA and U.S. Army Corps of Engineers is the reason why the couple has been unable to develop the land.

Significant nexus is established if there is a connection to a downstream waters of the U.S. and if an area in question has an effect on the chemical, physical, or biological integrity of traditional navigable water.

"The Sacketts' property contains no stream, river, lake, or similar waterbody," according to the brief.

"Yet EPA persists in its view that the Sacketts must obtain federal approval to build on their lot. It contends, and the Ninth Circuit agreed, that the Sacketts' proposed house requires a Clean Water Act permit because Priest Lake is a navigable water; a non-navigable creek connects to Priest Lake; the non-navigable creek is connected to a non-navigable, man-made ditch; the non-navigable, man-made ditch is connected to wetlands; these wetlands, though separated from the Sacketts' lot by a 30-foot-wide paved road, are nevertheless 'similarly situated' to wetlands alleged to exist on the Sacketts' lot; these alleged wetlands on the Sacketts' property, aggregated with the wetlands across the street, bear a 'significant nexus' to Priest Lake."

The brief goes on to say, as "circuitous and strained as this theory is, it gets even worse. For, as EPA itself recognizes, no water at all -- surface or subsurface -- flows from the Sacketts' lot to the wetlands or to the ditch across the street."

The brief said the Sacketts' story was "emblematic of all that has gone wrong" with the implementation of the Clean Water Act.

TWO-STEP PROCESS PROPOSED

The Sacketts outline what they said should be a two-step process for making wetlands determinations.

The first step, according to the brief, is to consider whether a wetland is "inseparably bound up" with a stream, ocean, river, lake, or "similar hydrogeographic feature," through a continuous surface-water connection. The second step, the brief said, is to determine whether the water connected to the wetland is a water of the U.S.

"The framework's first step proceeds on the premise, long acknowledged by this court, that wetlands are not 'waters' in their own right," the brief said.

MEMBERS OF CONGRESS

So far, hundreds of people and groups have signed on to the briefs with the Supreme Court backing the Sacketts. That includes a brief filed by nearly 200 members of Congress this week.

The lawmakers contend the Clean Water Act has gone far beyond Congress' original intent to regulate navigable waters and to work cooperatively with the states in securing clean waterways.

"Due to uncertainty created by more recent judicial decisions regarding the scope of 'waters of the United States,' however, the Environmental Protection Agency and the U.S. Army Corps of Engineers have been emboldened over time to infringe on the role of the states, extending the federal government's jurisdiction into everything from mudflats to ponds to prairie potholes," the lawmakers said in the brief.

"These 'increasingly broad interpretations' of what constitutes 'waters of the United States' have resulted in an 'immense expansion of federal regulation of land without any change in the governing statute.'"

Also this week, briefs were filed by the National Cattlemen's Beef Association and its state affiliates, as well as from farm bureaus in Arkansas, Arizona, California, Colorado, Illinois, Indiana, Iowa, Kansas, Minnesota, Missouri, Nebraska, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, South Dakota, Tennessee, Texas and Virginia.

Read more on DTN:

"Landowners Appeal to SCOTUS," https://www.dtnpf.com/…

"Idaho Family Fights Wetlands Designation," https://www.dtnpf.com/…

"EPA Defends Significant Nexus at SCOTUS," https://www.dtnpf.com/…

Read the briefs filed in the Sackett case here: https://www.supremecourt.gov/…

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @DTNeeley

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