Rare as it is to get a case once  before the U.S. Supreme Court, getting a return trip to the high court is  almost unheard of, but  that’s what Chantell and Mike Sackett of Priest Lake, ID, are getting. SCOTUS has granted their 46-page Writ of Certiorari.

Their petition, written by the Pacific Legal Foundation, frames the issue currently facing  the Idaho couple as they continue in a now  15-year pursuit to build  a single family house. It said:

“Petitioners Michael and Chantell Sackett own a vacant lot in a mostly built-out residential subdivision near Priest Lake, Idaho. The lot has no surface water connection to any body of water. In April, 2007, with local permits in hand, the Sacketts began building a family home. But later that year, respondent Environmental Protection Agency sent them an administrative compliance order determining that their home construction violated the Clean Water Act because their lot contains wetlands that qualify as regulated “navigable waters.”

“In Rapanos v. United States, 547 U.S. 715 (2006), the Court held that the Clean Water Act does not regulate all wetlands, but no opinion explaining why that is so garnered a majority of the Court. A plurality opinion authored by Justice Scalia and joined by three other Justices argued that only those wetlands that have a continuous surface water connection to regulated waters may themselves be regulated. A concurring opinion by Justice Kennedy advanced a different and much broader test, allowing for regulation of wetlands regardless of any surface connection, so long as the wetlands bear an (undefined) ‘significant nexus’ with traditional navigable waters. Below, the Ninth Circuit employed Justice Kennedy’s ‘significant nexus’ test to uphold EPA’s authority over the Sacketts’ homesite.

“The question presented is: Should Rapanos be revisited to adopt the plurality’s test for wetlands jurisdiction under the Clean Water Act?”

The Sackett’s were building the house 15 years ago when the two federal agencies involved, EPA and the Army Corps of Engineers, order them to stop work until a federal permit was obtained. If they went ahead without the federal permit, they risked tens of thosuands of dollars per day in fines

According to PLF: “The Sacketts have been in court fighting for the right to use their property since 2007. The Supreme Court heard the Sacketts’ case once before, ruling in 2012 that, contrary to EPA’s view, the Sacketts had the right to immediately challenge the agency’s assertion of authority over their homebuilding project. Now the Court will consider whether their lot contains ‘navigable waters’ subject to federal control.”

Damien Schiff, a senior attorney at Pacific Legal Foundation,  says: “The Sacketts’ ordeal is emblematic of all that has gone wrong with the implementation of the Clean Water Act.”

“The Sacketts’ lot lacks a surface water connection to any stream, creek, lake, or other water body, and it shouldn’t be subject to federal regulation and permitting,” Schiff adds. “The Sacketts are delighted that the Court has agreed to take their case a second time, and hope the Court rules to bring fairness, consistency, and a respect for private property rights to the Clean Water Act’s administration.”

In hearing the Sacketts’ case, the court will revisit the 2006 opinion it issued in Rapanos v. United States, another case litigated by Pacific Legal Foundation. In that case, a divided court left unclear which wetlands are under the federal government’s jurisdiction.

While the Sackett litigation has continued, the past three administrations made regulatory changes under the Clean Water Act.  A federal court struck down Trump administration rules favored by development and agriculture interests. And the Biden administration favors going back to something similar to the 2015 WOTUS regulations under Obama.

The Biden Justice Department opposed SCOTUS hearing a second Sackett appeal.

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