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Supreme Court may seek third option on testing what are '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 — The Supreme Court may be seeking a new test for determining when the federal government has jurisdiction over a waterway.

Kale Von Bruggen, a St. Cloud, Minnesota, attorney who focuses on drainage and water issues, said from observing the Supreme Court justices during the Oct. 4 hearing on a waters of the U.S. case, that their questions indicated that “they were looking for a third alternative” in determining what is a WOTUS.

The case, Sackett vs. EPA, is being closely watched for guidance on what falls under waters of the U.S. and is governed by the federal Clean Water Act and enforced by the Environmental Protection Agency.

Von Bruggen said the justices seemed critical of the Sackett attorneys who were trying to defend the right of an Idaho landowner who sought to fill in a soggy area on residential property near Priest Lake, a permanent body of water that more clearly fits the traditional idea of a water of the U.S.

But for wetlands adjacent to other waters, Von Bruggen said the justices seemed more inclined to use the “significant nexus” test, where filling a wet area may have an impact on another waterway or body of water, rather than the “continuous connection” test, where there needs to be a surface water connection to another water to fall under federal jurisdiction.

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Before the case reached the Supreme Court, the 9th Circuit Court of Appeals had sided with the EPA and its application of the significant nexus test, with subsurface water from below the Sackett property flowing to the lake, even though the Sackett property is separated from the lake by a road and other houses.

Von Bruggen said when a Supreme Court ruling comes, it may offer a new test to try to answer the vexing question of what is a WOTUS?

Von Bruggen said a ruling is not likely by the end of the year. And by that time, the EPA and Army Corps of Engineers may offer up their own definition of what is a water of the U.S. and guidance on adjacent wetlands.

Von Bruggen said those regulated by the Clean Water Act, including farmers, need to be able to know with some certainty whether or not an area falls under federal jurisdiction.

But he also said there are things farmers can do to avoid running afoul of federal rules, such as wetland mitigation, if there is any question.

If landowners are installing drain tile, doing it with a minimal amount of soil disturbance is another good practice.

During the Oct. 4 hearing, justices also were seeking some clarity.

Justice Neil Gorsuch questioned Deputy Solicitor General Brian Fletcher, who was representing the EPA, on the question of what it means to be “adjacent” to an existing WOTUS.

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Fletcher said attempts to define adjacency have been rejected by court rulings.

“So, if the federal government doesn't know, how is a person subject to criminal time in federal prison supposed to know?” Gorsuch asked.

Fletcher replied: “So the agencies (EPA and Army Corps of Engineers), in recognition of this problem, make available free of charge jurisdictional determinations as to any property. They also publicize their manuals …”

To which Gorsuch replied: “Their manuals, though, don't tell us the answer.”

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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