‘Elephants in Mouseholes’: Criminal Law Concerns Driving Supreme Court’s Clean Water Act Decision in Sackett v. EPA

As those who follow environmental matters have heard, the U.S. Supreme Court’s recent decision in Sackett v. EPA held EPA’s interpretation of the phrase “waters of the United States” (WOTUS) was applied too broadly to a parcel of residential property owned and filled with dirt by Michael and Chantel Sackett in Idaho. The Environmental Protection Agency (EPA) classified the property as WOTUS because it was a wetland located near a ditch that fed into a creek – which in turn fed into Priest Lake, a navigable intrastate lake. In the EPA’s view, the proximity of the wetland to the lake satisfied the definition of WOTUS because it was near enough to be deemed adjacent.