The Supreme Court’s 2023 ruling in Sackett v. EPA stripped federal protection from “isolated” wetlands that lack surface connection to water bodies deemed waters of the United States. And the EPA recently announced its intent to scale back federal wetlands regulation to reduce permitting costs for landowners and businesses, according to EPA Administrator Lee Zeldin, who was appointed in January by President Donald Trump.
The Pacific Legal Foundation represented plaintiffs Chantell and Mike Sackett in the case that constricted the scope of the Clean Water Act to only wetlands with continuous surface connections to waters of the U.S. Kileen Lindgren, a legal policy manager at the nonprofit constitutional litigation firm, told Tennessee lawmakers Wednesday that the bill they are considering is about “property rights and regulatory accountability.”
“When governments restrict … use, they’re devaluing property and violating owners’ rights under the Fifth Amendment,” she testified before the House Agriculture and Natural Resources Subcommittee.
Lindgren was the sole supporter to speak to the subcommittee, though a representative for the Tennessee Chamber of Commerce and Industry and Home Builders of Tennessee testified in favor of the bill at a previous Senate committee meeting. Six representatives from environmental groups and the mitigation banking industry urged lawmakers to reconsider the bill, warning it would largely remove incentives for developers to design around wetlands rather than destroying them.
Lindgren said she preferred the bill’s first iteration, which would have stripped all state regulation back to the level of the Sackett decision. The bill’s current version preserves the ability to impose mitigation requirements for high-quality isolated wetlands and moderate- and low-quality isolated wetlands larger than two acres.
“This bill as introduced recognized that to regulate land for having water on it amounted to the government devaluing that land, and when the government devaluates land, it takes away property rights and should justly compensate owners pursuant to the Fifth Amendment’s promise that individuals will not be deprived of life, liberty or property without due process of law, nor shall private property be taken for public use without just compensation,” Lindgren said.
She said the amended bill is only a “first step toward protecting private property rights.”
“As amended, the bill assumes the state has the authority to limit use of private property, and if the state wants to regulate isolated wetlands, it should justly compensate owners, recognizing that the people who are the state of Tennessee must bear the burden of this type of government interference,” Lindgren said.
Memphis Republican Rep. Kevin Vaughan, the bill’s House sponsor, brushed off scientists’ warnings that deregulation spurs increased flooding and decreased water quality as hyperbole and speculation. Vaughan said his main issue is the current rules seem to rely on a person’s intended use for the land, not solely the action of disrupting a wetland — agricultural uses are exempt from mitigation requirements.“All this comes down to humans determining where (wetlands) are, and it’s a game … deregulation needs to come, but it needs to be simplified through plainer regulation so people will know what’s expected of them when they encounter it,” Vaughan said.
Nashville Democratic Rep. Justin Jones questioned Lindgren’s motive for testifying.
“The thing that I’m seeing with this is that this is not about property rights or conservation,” Jones said. “This is about everyday Tennesseans versus the power of special interest lobbyists on this hill. Every email we received from all across the state — and I literally … printed every single email and went through each one — was against this bill.”