Supreme Court Promises Smooth Sailing to Owners of Waterfront Property

After a 17-year-old balancing test created by Justice Kennedy made a mess of environmental regulation, the justices unmuddied the water.

The very first case of this Supreme Court term, argued the first Monday in October, was Sackett v. EPA. Actually, as we’ll shortly see, it was Sackett II: Navigable Boogaloo. The case involved an Idaho couple who have been prohibited from building a home because their lot allegedly contains wetlands that qualify as “navigable waters” subject to federal regulation under the Clean Water Act (CWA). At issue was whether the U.S. Court of Appeals for the Ninth Circuit used the correct test to determine whether the wetlands are indeed “waters of the United States,” colloquially abbreviated to WOTUS.

For 50 years, Congress had dodged its responsibility to set clear boundaries on federal authority under the CWA. The executive branch, alas, further muddied these particular waters: every time there’s a political changeover in the White House, the limits of federal jurisdiction undergo a transformation. Thus, the regulatory reach of the CWA is a major question that Congress won’t answer and one that agencies can’t answer. As a result, landowners nationwide have been denied regulatory certainty with respect to the enjoyment of their property. The Court resolved it unanimously for the good guys on Thursday, but split 5-4 on what standard to apply going forward.