What’s old is new again. In January, the Supreme Court is once again hearing Sackett v. EPA. This gun battle is about a wetland with a proposed house development on it in Idaho near a body of water that the EPA regulates. Really, it’s about how far the federal government’s reach goes and what set of rules it should apply when extending is grasping, overbearing, federal reach. The first Supreme Court battle was over whether or not the Sacketts could even challenge the EPA. Now that that was settled, they are back to fight over what rule is applied.
The fed’s derive their authority from the Clean Water act passed in 1972 by requiring permits for discharging into a “navigable water.” Makes you think that means you can float a boat in it or otherwise “navigate” on the water. Nope, it means “waters of the United States” and territorial seas. No further guidance issued from our friends in Congress. They left it to the administrators in the EPA to develop their own rule. They have tried three times and had two of them invalidated by court challenges.
When this all started, the EPA’s take was that wetlands near (adjacent) other waters that they had jurisdiction on also fell onto them to regulate, Based on 1980s regulations and a 1985 ruling. By 2006, the court was asked if the EPA can regulate close but not touching waters. The lack of a clear court decision resulted in a position that a clear connection or nexus meant the EPA had control. What was a nexus or a clear connection, the answers are as many as the starts in the sky and the alligators in a Florida swamp? Sometimes, the courts use the nexus idea and sometimes the clear connection. The EPA seems to like the nexus approach. However, whatever administration is in the White House has colored the flavor of enforcement technique. For example, the EPA put out rules in 2020 and then under a presidential directive, said they were redoing them in 2021 and reissued them in Dec 21.
The fight is which rule from the 2006 case controls, nexus or connection. The Sacketts say the nexus system is a “wait and see” type system that is never clear and makes it hard to make decisions on land use and investments. The EPA told the Supreme Court not to worry about this question, they were going to make more rules that were backed up by lower court rulings they won in and not to worry.
If you think this is going to be resolved anytime soon, you are wrong. Every year I attend an Ag Law Conference where this topic, if not on the official schedule, is on the lips of a small group of water law junkies and constitutional law nuts. The only thing that changes is the location of the conference, the food served at the break, and the gray in the hair of the debating parties.
Other States Follow Iowa’s lead
Iowa has long had a ban on ownership of land by foreign persons, particularly in the farmland sector. So does Minnesota, Mississippi, North Dakota, Oklahoma and Hawaii. Alabama, Missouri, and Indiana are all in various stages of contemplating restrictions. The work around is to have a “sponsor” acquire land in an LLC and then when the person obtains citizenship, they can take the title from the Sponsor LLC. Some states are wise to that loophole and encourage it, others have more formal protections and exemptions built in.