GCSAA publishes specialized information on a frequent basis that drills down on top advocacy issues and activities.
By Vilmer Alvarado, government affairs intern
The Supreme Court has decided to grant cert in the Sackett v. Environmental Protection Agency case, which could have great significance over golf course operations. Specifically, the Court will consider the question of whether the Ninth Circuit Court of Appeals set forth the proper test for determining whether wetlands are “waters of the United States” under the Clean Water Act, 33 U. S. C. §1362(7). This Court decision represents an opportunity to properly define a test for determining a Water of the United States (WOTUS) and could affect the Biden Administration’s work to redefine WOTUS.
The Court plans to take up the challenge involving an Idaho couple (Michael and Chantell Sackett) in the next term beginning in October. The last time WOTUS was taken up in the Supreme Court was in the 2006 Rapanos v. United States case in which the Court could not deliver a majority opinion. The plurality opinion included a test created by Justice Anthony M. Kennedy that says that the Clean Water Act includes wetlands that have a “significant nexus” to other bodies of water.
The Sacketts previously won a battle at the Supreme Court to build a home near Priest Lake, Idaho. Now the EPA is saying the couple’s roughly half-acre lot is under the jurisdiction of the Clean Water Act due to the presence of wetlands in the territory, meaning they would require a permit. When the EPA denied the Sacketts a hearing, they sued and took their case to court. The ruling of the Ninth Circuit Court of Appeals concluded the wetlands on the Sacketts’ property have a “significant nexus” to priest lake and are indeed waters of the United States. While not controlling, the Ninth Circuit used this test to find out if the Sackett’s wetlands and their subsurface connection to priest lake are under the jurisdiction of WOTUS.
GCSAA submitted comments in response to President Biden’s proposed repeal of the Navigable Waters’ Protection rule. GCSAA believes the best path forward is a suspension of further rulemaking until the Sackett case is resolved. A decision in the case is not expected until late 2022, at the earliest.