In 2006, the U.S. Supreme Court ruled that the Environmental Protection Agency (EPA) lacked the regulatory power to expand its reach, but in 2015 the Obama administration ignored that ruling and expanded the definition of WOTUS to cover nearly every square mile of the United States. Ignoring this, the EPA continues to exercise its jurisdiction over any waters that it decides constitute “Waters of the United States.”
Southeastern Legal Foundation (SLF), along with coalitions of states, industry representatives, and non-government organizations, filed lawsuits throughout the country challening the 2015 WOTUS Rule. Before the courts could reach the merits, the Trump administration repealed the 2015 WOTUS Rule and replaced it with the 2020 Navigable Waters Protection Rule. The result is a patchwork of regulations that makes it impossible for a property owner to know if the EPA will come in an assert jurisdiction over their private land.
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One of the longest-running battles in the history of the Clean Air Act involves the Sacketts and their private property in Idaho. The Sacketts, represented by Pacific Legal Foundation, bought a vacant residential lot, obtained local permits, and started construction on a home. But the EPA suddenly ordered them to stop work, asserted jurisdiction over the property claiming that it contained a wetland that could not be filled without a federal permit. Not only did the EPA prohibit the Sacketts from building their home, they demanded costly restoration work, required a three-year monitoring program, and threatened the Sacketts with fines of up to $75,000 per day.
The Sacketts and their attorneys at Pacific Legal Foundation have been battling in court with the EPA for over a decade. They are now asking the Supreme Court to hear their case again and Southeastern Legal Foundation filed an amicus brief urging the Supreme Court to take the case and clarify, once and for all, what the EPA can regulate under the Clean Water Act and what it cannot.