SCOTUS decision in Sackett v. EPA applauded
The question of whether a “significant nexus” exists between wetlands and caters that are covered by the Clean Water Act, and whether the wetlands “significantly affect” the quality of those waters was at the heart of a decision handed down May 25, 2023, in Sackett v. EPA. SCOTUS reversed a lower court’s ruling, a move that has been widely applauded by agriculture.
The holding that the Clean Water Act extends only to wetlands that have a continuous surface connection with “waters” of the United States — i.e., with a relatively permanent body of water connected to traditional interstate navigable waters, making it difficult to determine where the water ends and the wetland begins was reversed and remanded in an opinion by Justice Samuel Alito. Justice Clarence Thomas filed a concurring opinion, in which Justice Neil Gorsuch joined. Justice Elena Kagan filed an opinion concurring in the judgment, in which Justices Sonia Sotomayor and Ketanji Onyika Jackson joined. Justice Brett Kavanaugh filed an opinion concurring in the judgment, in which Justices Sotomayor, Kagan and Jackson joined.
National Cattlemen’s Beef Association chief legal counsel Mary-Thomas Heart told the Western Ag Network’s Lane Nordlund “today farmers, ranchers, cattle producers, landowners across the country are experiencing a massive exhale, at least that’s how I feel in my office.
She said the NCBA has been working on this since 2015 through the regulatory process and litigation, but producers have been dealing with different iterations of WOTUS definition since the Clean Water Act was passed into law in 1972.
“This is a huge moment in creating as much clarity as possible for landowners across the country and I think the death of the “significant nexus” test is not something we’re taking lightly, we’re certainly happy to see it go away,” she said.
In the more than 80-page opinion, she said the major takeaways are two unanimous holdings.
“Applied to the facts of the case, the Sacketts are not liable under the Clean Water Act,” she said. “Their wetlands are not federally jurisdictional and every justice on the bench agreed to that. The second thing that was unanimously agreed upon is that the significant nexus test is not the standard that the EPA and the Army Corp of Engineers should use in determining if a feature is jurisdictional under the Clean Water Act. Two massive holdings, both of which were 9-0 votes.”
In lieu of significant nexus, she said there is some differentiation in the justice’s opinions. She said the decision that was key to the current position, is the SCOTUS decision in Rapanos v. United States, a 4-1-4 decision. In that decision, she said four justices recommended a continuous surface connection test, one justice recommending the significant nexus test, and four justices saying they didn’t particularly care for either test, but calling the significant nexus test the lesser of the two evils.
“Even though it was divided in which test to use in determining jurisdiction under the Clean Water Act I think the court was incredibly mindful of that,” she said. “The majority — five of the justices — recommended the continuous surface connection test as the new standard for defining which features are federally jurisdictional. The four justices in the minority said we don’t love the continuous surface test, but we also don’t like the significant nexus test, so they didn’t provide an alternative test, so continuous surface connection is going to be the law of the land that’s going to be the standard that EPA and the Army Corp of Engineers are tied to for future definitions of Waters of the U.S.”
In determining navigable waters in the case of a rainy season or a year with high snowpack, she said continuous surface connection is a narrow standard. EPA will be tasked with defining a continuous surface connection, but when it comes to continuous, there’s little wiggle room.
She said when NCBA seeks to determine a definition, they look at three main features, two of which she said were clearly addressed in the opinion. The first is the regulation of isolated features: isolated wetlands, prairie potholes, vernal pools, playa lakes, those features that are not on their own connected to downstream navigable water.
“Based on today’s opinion, those features are clearly not going to be subject to federal jurisdiction in the future,” she said. “Now, the other features we are always mindful of are those ephemeral features or features that really only carry water after a precipitation event and that’s where the word continuous is going to come into play. There are three different types of streams or categories of flow. Perennial, year-round, all the time — those features are generally subject to jurisdiction and people don’t typically argue whether those should be managed by EPA. Seasonal or intermittent features are going to be the gray area.”
As for ephemeral features that only carry water after sporadic precipitation events, she said it’s going to be a pretty clear no from the Supreme Court on jurisdiction of those features.
“Maybe still a couple questions to answer,” she said. “Someone said earlier today that we’ve moved the scrimmage line and I think that’s a really good analogy. It certainly changes our starting point in a future conversation with EPA about which features are in and which features are out.”
NO FLIP FLOPPING
This concludes years of back and forth about regulatory definitions of navigable waters and she said it appears the high court was concerned with what she called administrative flip flopping and whiplash that we saw from EPA in the past several years.
“One of the purposes of today’s opinion and a very clear holding was to reinforce the EPA that regardless of what the standard is, we don’t have time and regulated stakeholders don’t have time for the regulatory whiplash that’s being created by there various definitions of WOTUS,” she said. “When it comes to the Biden rule that is currently in effect in 24 states, at a minimum the Biden administration is going to be required to pull that rule back and do some significant revisions. The significant nexus test is the cornerstone of this rule that was finalized a couple of months ago, so with that test gone, it pulls the underpinning of everything in that definition.”
She said NCBA will likely work in the federal district court system to work for a vacatur of that rule in the meantime, NCBA is currently involved in litigation fighting the Biden rule and will be working through that process. Even while the Biden rule is still technically in effect, she said she doubts that EPA and the Army Corp of Engineers will utilize the significant nexus test given the SCOTUS decision.
“Whether it’s from ag groups or building groups or other industry, other land-owning entities, we want to make sure those justices see just how broad the impact of something like the significant nexus test can be,” she said. “It’s not just this one family, it’s not just this one wetland. It is across the country impacting small businesses, family operations, farmers and ranchers.”
Heart said she hopes this will put to bed the WOTUS argument, though she anticipates the regulation of groundwater under the CWA is likely on the horizon. This is likely to heavily impact small- to medium-sized livestock feeders in determining the permitting needs of their operation. She said NCBA’s work to ensure that cattle production’s climate value is highlighted will go on.
In response to the Supreme Court decision, EPA Administrator Michael S. Regan issued the following statement:
“As a public health agency, EPA is committed to ensuring that all people, regardless of race, the money in their pocket, or community they live in, have access to clean, safe water. We will never waver from that responsibility.”
President Biden said, “The Supreme Court’s disappointing decision in Sackett v. EPA will take our country backwards.” “It puts our nation’s wetlands — and the rivers, streams, lakes, and ponds connected to them — at risk of pollution and destruction, jeopardizing the sources of clean water that millions of American families, farmers, and businesses rely on. Our fight for clean water for all must go on, and it will.”