Supreme Court tightens Clean Water Act authority, affecting WOTUS
|In a decision that almost certainly requires the Environmental Protection Agency to rewrite the Biden administration’s Waters of the United States rule, the Supreme Court ruled today that EPA does not have the authority to regulate wetlands outside those “with a continuous surface connection.”|
The ruling was in the case of Sackett v. Environmental Protection Agency, which an Idaho couple, Michael and Chantell Sackett: brought after they had prepared a property for house construction in 2007. EPA ordered the couple to return the property to its original state and threatened to fine them.
While the ruling was unanimous that EPA had overstepped its authority, the justices issued separate opinions on their individual reasoning.
|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.
“Since the Clean Water Act was passed by an overwhelming bipartisan majority in Congress in 1972, it has been used by Republican and Democratic administrations alike to help ensure Americans in every state have clean water. It is the reason why today America’s lakes are swimmable, why we can fish in our streams and rivers, and why clean water comes out of our taps.
“Today’s decision upends the legal framework that has protected America’s waters for decades. It also defies the science that confirms the critical role of wetlands in safeguarding our nation’s streams, rivers, and lakes from chemicals and pollutants that harm the health and wellbeing of children, families, and communities.
“I am committed to protecting clean air and water for our kids for generations to come. My team will work with the Department of Justice and relevant agencies to carefully review this decision and use every legal authority we have to protect our nation’s waters for the people and communities that depend on them.
“We will work with states, cities, and Tribal communities to pass and uphold critical protections for their residents. Through my Investing in America agenda, we’re already deploying historic resources in communities all across America to remove lead pipes, improve water quality, and rebuild the nation’s drinking water infrastructure.
“Our fight for clean water for all must go on, and it will.”
|EPA Administrator Michael Regan said he was “disappointed” by the ruling.|
“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,” Regan said in a statement. “We will never waver from that responsibility.”
“I am disappointed by today’s Supreme Court decision that erodes longstanding clean water protections. The Biden-Harris administration has worked to establish a durable definition of ‘waters of the United States’ that safeguards our nation’s waters, strengthens economic opportunity, and protects people’s health while providing the clarity and certainty that farmers, ranchers, and landowners deserve. These goals will continue to guide the agency forward as we carefully review the Supreme Court decision and consider next steps.
“In 1972, an overwhelming bipartisan majority in Congress passed the Clean Water Act, giving EPA and Army Corp implementation responsibilities. In doing so, our leaders recognized that protecting our nation’s waters is vital to ensuring a thriving economy and agricultural sector, to sustaining diverse ecosystems, and to protecting the water our children drink.
“Over the past 50 years, we have made transformational progress — rivers that were once on fire have been restored and now sustain vibrant communities in every corner of the country. A common sense and science-based definition of ‘waters of the United States’ is essential to building on that progress and fulfilling our responsibility to preserve our nation’s waters — now and for future generations.”
|The Environmental Working Group described the decision as 5 to 4, apparently due to the justices’ differing viewpoints.|
Although the Sackett case involved the construction of a house and has made the issue a subject of intense interest to the homebuilding industry, the EWG noted, “Agricultural activities are one of the main sources of water pollution in U.S. rivers, streams, lakes, wetlands and groundwater. Each year, farm operators apply more than 12 million tons of nitrogen fertilizer and 8 million tons of phosphorus fertilizer to cropland, some of which runs off into water sources.”
“As a result of today’s ruling, millions of acres of wetlands across the country will no longer be protected under the Clean Water Act. “EWG president and co-founder Ken Cook said, “The Supreme Court’s ruling undermines the EPA’s authority to prevent damage to wetlands and other drinking water sources from farm pollution and other industrial activities that can have serious implications for public health.”
“Agriculture is already a leading source of drinking water contamination in the country, and the court’s ruling will only make things worse by curbing the EPA’s ability under the Clean Water Act to hold polluters like corporate agriculture operations accountable.”
|Trout Unlimited President and CEO Chris Wood said, “We are disappointed with the Supreme Court’s ruling.”|
“The court has severely eroded a 50-year national commitment to clean water, and misses the obvious point that wetlands are often connected to streams through subsurface flows,” Wood said.
“The ruling is a victory for muddy thinking, and directly compromises the stated purpose of the Clean Water Act — to make our rivers and streams more fishable, swimmable and drinkable.
“It is critical that the Biden administration continue advocating for a ‘Waters of the U.S.’ definition that is rooted in science and ensures protection of the small streams and wetlands that provide clean water for people, communities, businesses, farmers, and fish and wildlife.
“This ruling makes Trout Unlimited’s work on the ground to reconnect and restore trout and salmon watersheds even more vital,” Wood added.
Farm leaders and Republican lawmakers issued statements praising the ruling.
|American Farm Bureau Federation President Zippy Duvall said, “AFBF appreciates the Supreme Court justices for their careful consideration of the implications of Sackett v. EPA.”|
“The EPA clearly overstepped its authority under the Clean Water Act by restricting private property owners from developing their land despite being far from the nearest navigable water.
“The justices respect private property rights. It’s now time for the Biden administration to do the same and rewrite the Waters of the United States Rule. Farmers and ranchers share the goal of protecting the resources they’re entrusted with, but they deserve a rule that provides clarity and doesn’t require a team of attorneys to properly care for their land.”
|The National Cattlemen’s Beef Association said it “strongly supports this ruling and is currently engaged in a litigation against the Environmental Protection Agency regarding the Biden administration’s WOTUS definition.”|
“Cattle producers across the country can breathe a sigh of relief today,” said Todd Wilkinson, South Dakota cattle producer and president of the group.
“Since EPA’s adoption of the ‘significant nexus’ test, cattle producers have had to retain costly legal services to determine if water features on their property are federally jurisdictional,” Wilkinson said.
“Today’s Supreme Court opinion refocuses the Clean Water Act on protecting our water resource through regulatory clarity. We look forward to working with the EPA and U.S. Army Corps of Engineers as they implement the court’s new Continuous Surface Connection standard.”
NCBA submitted an amicus brief in the Sackett case, encouraging elimination of the significant nexus test in exchange for the group called “a more practical standard.”
“In its brief to the court, NCBA highlighted the unconstitutionality of imposing criminal penalties for violations of vague standards under the Clean Water Act. The court recognized and reversed the significant nexus test, in part due to the constitutional due process risk that it created,” said Mary-Thomas Hart, chief counsel for the NCBA.
|House Agriculture Committee Chairman Glenn “GT” Thompson, R-Pa., said, “Today’s unanimous ruling in Sackett v. EPA is a victory for America’s farmers, ranchers, and land owners.”|
“The decision reaffirms the rights of property owners and provides long-needed clarity to rural America. In light of this decision, the Biden administration should withdraw its flawed final WOTUS rule. It is time to finally put an end to the regulatory whiplash and create a workable rule that promotes clean water while protecting the rights of rural Americans.”
|Sen. John Hoeven, R-N.D., the ranking member on the Senate Agriculture Appropriations Subcommittee, said, “This ruling is an important step towards reining in the Biden administration’s repeated regulatory overreaches.”|
“The new WOTUS rule being pushed by the EPA would impose tremendous burdens on industries across our economy, including agriculture, energy and construction. That means even higher costs for consumers and stunted economic growth, limiting the creation of good-paying jobs.
“As such, we’ve been working to reverse this harmful regulation from the administration, and with this ruling in place, the lower courts should follow suit, preserve states’ authority to regulate local waters within their borders and protect private property rights.”
|Sen. Kevin Cramer, R-N.D., said, “Today’s Supreme Court decision finally makes clear what we’ve known all along, that the Clean Water Act was never intended to regulate puddles.”|
“The court was right to rein in the EPA’s quest to regulate to the rain drop,” Cramer said.
“Now, the Biden administration must withdraw their Waters of the United States rule in light of the decision and stop trying to circumvent the law. I am hopeful this case puts a stop to the unworkable regulatory ping pong which North Dakotans and landowners have been subjected to for far too long.”
|Rep. Dan Newhouse, R-Wash., said, “Today is a huge win for Central Washington and rural America.”|
“The draconian WOTUS rule had cast a cloud of uncertainty over landowners, subjecting them to burdensome regulations that hindered their ability to fully utilize their property. This landmark decision from the Supreme Court is a clear demonstration of our nation’s commitment to upholding the principles of individual property rights and sends a powerful message that the federal government cannot trample upon the rights of American citizens.”
Newhouse continued, “With this decision, our farmers in Central Washington and across America can continue to focus on what they do best — feeding our nation and contributing to our local economies — without the unnecessary fear of unwarranted regulations impeding their progress.”
“Now, I call on the Biden administration to do its part and rescind its rule which would so clearly be considered unconstitutional by the highest court in the land.”
|National Association of Wheat Growers CEO Chandler Goule said, “NAWG is pleased with the rule the Supreme Court issued today that rejected the confusing and expansive ‘significant nexus’ test that broadened the jurisdiction of the Clean Water Act.”|
“The Supreme Court ruling sided with a narrower definition of the Clean Water Act jurisdiction and limited the number of wetlands that would come under the regulation of the Clean Water Act,” Goule said.
|National Corn Growers Association President Tom Haag said, “This sensible ruling preserves protections for our nation’s valuable water resources while providing clarity to farmers and others about the process of determining federal jurisdiction over wetlands.”|
|National Association of State Departments of Agriculture CEO Ted McKinney said, “The Supreme Court’s unanimous decision in Sackett v. EPA today comes as welcome news to farmers, landowners and state departments of agriculture who sought clarity on what has been an over-litigated issue for decades.”|
“We take relief in this decision as the justices clearly state the ‘significant nexus theory is particularly implausible’ and the EPA has no statutory basis to impose the standard,” McKinney said.
|National Council of Farmer Cooperatives President and CEO Chuck Conner said, “The years of whiplash over what is or is not a water of the U.S. had brought us to a point where no one could tell their headwater from their estuary.”|
“The Supreme Court’s ruling today is a victory for farmers, ranchers, and private property owners across the country and starts us down a path of Clean Water Act implementation that can be sustained.
“Water quality is a critical issue, but that doesn’t mean every puddle on the farm needs to be subject to federal jurisdiction,” Conner concluded.
“NCFC and the farmer-owned cooperatives we represent remain fully committed to federal, state and local efforts to work with agriculture to protect surface water quality throughout the U.S. We hope the certainty provided by today’s decision will give us all a solid framework to work together for lasting solutions.”
|Texas Agriculture Commissioner Sid Miller, an elected Republican, said, “I agree with Supreme Court Justice Clarence Thomas’ conclusion that this ‘… curbs a serious expansion of federal authority that has simultaneously degraded states’ authority …'”|
“The fact that this ruling was unanimous shows it is a victory for common sense,” Miller said.”I believe that we can move forward with proper water planning for Texas now that this issue is essentially settled.
“Agriculture’s future is tied to the basic rights of farmers and ranchers being able to access and manage their water resources. Today is a good day for the future of American agriculture.”
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