Many articles in the farm press have covered the recent U.S. Supreme Court opinion in the Sackett vs. EPA case. Finally, we have a test to determine what is a water of the United States (WOTUS).

If there ever was a case that exemplified the deep state and its action, Sackett is the case.

According to this article by Tiffany Dowell in Texas A&M AgriLife, it started way back in 2007 when a family in Idaho bought a lot and began backfilling the property with dirt and rock. The EPA claimed the wetlands on the Chantell and Mike Sackett lot were adjacent to an unnamed tributary on the other side of a 30-foot road. The EPA claimed this was a ‘Waters of the United States’ and threatened fines of $37,000 a day if they continued backfilling.

The Sacketts fought back. In 2012 property owners thought they had gotten rid of EPA regulators with a Supreme Court ruling. But since this is politics and bureaucrats are involved, nothing is ever certain, at least until now. Now, some 16 years later, we seem to have a declaration of victory for property owners.

Regulators run amok

The EPA made the Sacketts’ life miserable, all over 0.64 acres. The EPA bureaucrats claimed there were wetlands on the Sackett’s building lot. EPA wanted thousands and thousands a day if the Sacketts did not comply. EPA would not even give the Sacketts a hearing. (Arrogance beyond belief!) So, the Sacketts appealed that matter, and it eventually reached the Supreme Court which had the same reaction you would have. But EPA was not satisfied and again went after wetlands. A perfect example of a bureaucracy out of control. Again, the Sacketts fought back – and won!

What EPA wanted

This decision helps you and if you have a wetlands problem, you, and your lawyer both need to read the Rapanos case. EPA, as usual with any bureaucracy, wanted the U.S. Supreme Court to defer to its WOTUS definition. EPA says a water on your land may be a wetland using this significant nexus test. This test was knocked out finally, along with bureaucratic deference.

Finally, the Supreme Court said the Clean Water Act “…extends only to those wetlands with a continuous surface connection to bodies that are waters of the United States in their own right so that they are indistinguishable from those waters.”

This is a long opinion. And I congratulate those who read all the concurring opinions. However, the concurring opinions are worth reading, especially the opinion by Justices Thomas and Gorsuch. Justice Thomas claimed that the EPA and Corps had “flouted” an earlier Supreme Court decision. The decision in Sackett will show you why the federal bureaucracy is out of control.

‘Significant nexus’ test destroyed

Here’s some jargon you shouldn’t have to wonder about anymore. One of the biggest victories achieved by the Sackett case is that the ‘significant nexus’ test is destroyed. EPA and the Corps wanted to use a significant nexus test because it gave each agency unfettered discretion to destroy you, the property owner, if it wanted to. If you do not believe me, send a letter to U.S. Rep. John Duarte, R-Calif., a California farmer and new Congressman. He will tell you how close he came to being destroyed, all because he chisel plowed some alleged wetlands.

The Sackett case was decided on May 25, 2023. All of you who are having fights with EPA, Corps and the USDA need to read the Sackett case opinion. This administration recently promulgated a new regulation on what is a WOTUS. It allows the bureaucrats to determine that prairie potholes, wet meadows, intermittent streams, and mud flats can be WOTUS, but the Supreme Court just said no.

Enjoy the victory, they are pretty rare for property owners these days.

The opinions of the author are not necessarily those of Farm Futures or Farm Progress.