A new battle over wetlands regulations is brewing in Idaho, less than 50 miles from the property at the center of a sweeping Supreme Court ruling that erased federal protections for many wetlands.
Two years ago, the high court ruled in Sackett v. EPA that only wetlands with a “continuous surface connection” to navigable waters are protected by the Clean Water Act. That case centered on a property in Bonner County, Idaho, which the court found did not contain wetlands regulated under the 1972 law.
Despite this, the federal government is now trying to claim oversight of wetlands on another property in Bonner County with “striking similarities” to the one in Sackett, according to an administrative filing last week. At issue in the new case is a 4.7-acre property that the Army Corps of Engineers says contains over an acre of federally regulated wetlands.
The agency is using the same logic that the court rejected in Sackett, the property owners said in their appeal of the Army Corps’ determination. They are represented by the Pacific Legal Foundation, the law firm that litigated the Sackett case and frequently represents individuals and businesses challenging environmental laws.
The case is one of a handful across the country in which the Army Corps and EPA are essentially failing to comply with the ruling, Pacific Legal Foundation attorney Charles Yates said in an interview. He described the lot in the new case as “materially identical” to the one in Sackett.
“What the Corps has done here is, just like in the Sackett case, they’re alleging that there’s a subsurface connection between alleged wetlands on our clients’ lot and the wetlands to the north of the lot, which connect to the tributary,” Yates said.
That’s despite the wetlands in question being separated by a road, he added.
Army Corps spokesperson Doug Garman said in an email that the agency continues to implement the Clean Water Act in a way that’s consistent with “all applicable regulations and guidance provided” by EPA. In the agency’s determination for the Idaho property in May, it stated that that the Bonner County property contains wetlands that are part of a larger “wetland complex” adjacent to a tributary.
The Clean Water Act only protects wetlands and waters that are considered “waters of the U.S.” The law requires that anyone seeking to alter or pollute those waters first obtain approval from the Army Corps.
Exactly which wetlands are covered by the law has long been a matter of dispute. Sackett likely stripped protections for many wetlands that are visibly isolated from rivers, streams, lakes and the ocean. Still, scientists say that all wetlands play a critical role in preserving water quality and reducing flood damages.
The dispute in Idaho comes as the Trump administration is developing a new regulation that could further narrow the scope of the Clean Water Act. EPA and the Army Corps plan to propose the new regulation later this year.
Yates said the administrative appeal is the first step in the process to change the Army Corps’ determination. If the agency does not reverse course, the landowners will have the opportunity to file a lawsuit, he said.
