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Supreme Court to weigh in on 'waters of the US'

The Sackett v. EPA case marks another attempt to pin down what is a waters of the U.S., or WOTUS, an issue that has been debated for years with the legal ambiguity a thorn in the side of farmers and ranchers, property developers and others seeking clarity on how not to run afoul of federal law.

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The Supreme Court stands in Washington.
Joshua Roberts / Reuters
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WASHINGTON — Will the same Supreme Court that reversed Roe v. Wade also blow up federal water regulation?

While the Biden administration plods along on forming a water protection policy, ag groups are watching the Sackett v. EPA case that is first on the docket when the Supreme Court meets again in October.

The Sackett case centers on homeowners who were ordered to stop building on a piece of property they owned near Priest Lake in Idaho because the wetlands on the property were determined to fall under Waters of the U.S. and were protected by the Clean Water Act.

The case marks another attempt to pin down what is a waters of the U.S., or WOTUS, an issue that has been debated for years with the legal ambiguity a thorn in the side of farmers and ranchers, property developers and others seeking clarity on how not to run afoul of federal law.

A previous Supreme Court ruling put forth the “significant nexus” test from Justice Anthony Kennedy to determine whether a water falls under federal regulation. While a water may not be a navigable waterway, it may drain into a waterway or in some other way have a significant impact.

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Courtney Briggs, senior policy director for the American Farm Bureau Federation
Jeff Beach / Agweek

Courtney Briggs, senior director for government affairs with the American Farm Bureau Federation, the Army Corps of Engineers used that “significant nexus” to assert jurisdiction over the Sackett property.

The case essentially questions whether they used the right test to determine jurisdiction or should some other test be used, such as a water being “relatively permanent.”

Meanwhile, the Biden administration is pushing ahead with its attempt to provide a WOTUS definition, something Briggs said she thinks is a mistake given the pending Sackett decision.

“We do feel like the agencies (the Environmental Protection Agency and Army Corps of Engineers) need to halt their work on this proposed rule,” Briggs said. “Their work, a lot of it hinges on their use significant nexus.”

Oral arguments are set for Oct. 3 and based on court history, Briggs said a ruling could come in the first half of 2023.

But Briggs said the EPA has indicated it is intent on issuing a WOTUS rule yet this year.

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Scott VanderWal

Scott VanderWal, a South Dakota farmer and vice president of the American Farm Bureau Federation, fears it will be too much like the Obama era rule.

“The current administration seems set on going back to basically what we had in 2015,” VanderWal said. “We didn’t like that at all because it was too complicated and you had to hire lawyers and engineers to figure out if you were going to be regulated.”

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Briggs and VanderWal also said they were disappointed that EPA is choosing not to use information it gathered earlier this year at regional roundtables.

“Just recently, they said they weren’t going to use that data that they gathered to write the final rule, which really caught us off guard,” VanderWal said.

Whatever the EPA comes out with, it will not end the WOTUS debate.

“The rule will have to come out for public comment and we’ll be very involved in that process, I can assure you,” VanderWal said.

Waters of the U.S. timeline

Reach Jeff Beach at jbeach@agweek.com or call 701-451-5651 (work) or 859-420-1177.
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