Washington Policy Center: Coming SCOTUS decision could be big for Eastern Washington

By Sean V. O’Brien

The Sackett family has spent the past 15 years in the courts disputing the Environmental Protection Agency’s blocking their right to build a home on land they own near Priest Lake, Idaho.

This past October, the U.S. Supreme Court opened its doors for the public to listen in on oral arguments for the first time in 21/2 years since the original COVID lockdown in March 2020. The first case on the docket was theirs, Sackett v. EPA, the outcome of which will have profound implications for the future of rural communities in Eastern Washington and across the country.

The EPA alleges the Sackett’s residential lot is a federally protected wetland under EPA jurisdiction. Sackett v. EPA asks the Supreme Court to clarify the scope of the EPA’s regulatory authority under the Clean Water Act. The court’s decision should of course be the final say on whether the Sacketts can build their proposed home, but it will also have sweeping implications on whether the EPA can expand the definition of “navigable waters” to include any semi-soggy lowland, ditch or parcel of land across the country.

Many will remember the saga of the Obama administration’s disastrous Waters of the United States – or WOTUS – rule. As a young staffer on Capitol Hill at the time, seared into my memory is how serious the regulatory uncertainty was for the agricultural community under the proposed rule, threatening to turn every ditch, puddle, or creek into a federally protected “navigable waterway.” The drastic expansion of the EPA’s jurisdiction in the rule was characterized as one of the most egregious oversteps by the federal government in history. Fortunately, the courts agreed and blocked its implementation.

Yet predictably the federal government continues to do its best to exert its regulatory might. Even as we await the court’s decision on Sackett, the Biden administration has barreled forward with their own rulemaking – essentially, WOTUS 2.0 – by introducing a new rule on the last business day of 2022 to expand the definition of navigable waters and again threaten rural America’s way of life.

While the Obama WOTUS rule was blocked by the courts, the Biden administration has now sought to codify a serpentine rule that avoids the legal landmines of the original WOTUS.

There was simply no reason for the Biden administration to move forward on this exercise when they knew the court would be issuing a ruling on this very matter. It only serves to cause further uncertainty for the American farmer and rancher.

Unfortunately, it’s not just bad ideas at the federal-level that are rearing their ugly heads to come after our water and threaten our agricultural lands. Legislation similar to the riparian “buffer bill” introduced during the last legislative session in Olympia has been reintroduced this week. The bill (HB 1838) – which would have exponentially cut off productive farmlands across the state while exempting urban areas – faced overwhelming public outcry and eventually did not receive a vote. Yet, it’s back again.

As Washington Policy Center’s new Eastern Washington director, it is my charge to help tell of the impacts of these misguided measures and to ensure the communities east of the Cascades have a voice in Olympia. Why is it that those who decry “big agriculture” and so-called “factory farms” are the same people who do everything they can to put the family farmer out of business?

At the core of Eastern Washington’s economy and identity is agriculture – our region’s farmers feed the country and the world. Our elected leaders in Olympia and Washington, D.C., must recognize that.

I was proud to work on efforts supporting the Sacketts’ case and was humbled to hear the arguments made before the Supreme Court in person this past October. It is my hope the court will finally provide the certainty rural America has long deserved and the victory the Sackett family has waited too long for.

Sean V. O’Brien is Eastern Washington director for Washington Policy Center. He is the former executive director of the Congressional Western Caucus and is based in the Tri-Cities.