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SCOTUS water decision could be a game-changer

Water Lines: The evolution of the definition of WOTUS has been a source of confusion and concern for American agriculture for several decades.

Dan Keppen

February 17, 2022

3 Min Read

Potentially game-changing news for Western farmers and ranchers hit the headlines early this year when the U.S. Supreme Court announced that the justices will revisit and potentially limit the scope of Clean Water Act (CWA) precedent.

The case to be taken up by the Supreme Court centers on a conflict between an Idaho couple, Chantell and Michael Sackett, and the Environmental Protection Agency (EPA). The Sacketts attempted to build a home on land the EPA claims to be federally protected wetlands under the CWA.  The Supreme Court in 2012 sided with the Sacketts in their battle for judicial review of an EPA order that stopped them from building a house on their land and threatened fines of more than $30,000 a day. In a short order last month, the justices agreed to consider whether the 9th U.S. Circuit Court of Appeals erred when it affirmed that the federal government has permitting authority over the couple’s property in northern Idaho.

The interpretation of what qualifies as “waters of the U.S.” (WOTUS) under the CWA is the focus of this case. Justice Anthony Kennedy provided the key vote in the 4-1-4 decision in Rapanos v. United States in 2006, where he disagreed with his colleagues on how to determine in which cases the federal government can exercise its CWA authority.

In the years since Rapanos, federal courts have generally favored Justice Kennedy’s “significant nexus” test, which takes a broad view of federal jurisdiction, over Justice Antonin Scalia’s narrower definition requiring a wetland to have a continuous surface connection to a regulated water. Former Justice Kennedy’s test had served as the basis for the Obama administration’s Clean Water Rule, which the Trump administration later replaced with the Navigable Waters Protection Rule. The Trump rule relied heavily on former Justice Scalia’s CWA interpretation. That rule was struck down by a federal court in Arizona last year, giving the Biden administration a chance to write a brand-new rule.

The evolution of the definition of WOTUS has been a source of confusion and concern for American agriculture for several decades. Last month’s decision to grant cert could provide a new perspective of what the language in the CWA really means.

In 2019, the Family Farm Alliance submitted extensive formal comments to the EPA and U.S. Army Corps of Engineers in support of the Trump Administration’s approach to base a new WOTUS rule on former Justice Scalia's plurality decision in the 2006 Rapanos case. With cert granted in the Sackett case, the Supreme Court – now loaded with conservative-leaning justices -- could take action in October that removes the need for the Biden Administration to write a brand-new rule for what constitutes WOTUS under the CWA. 

Until then, we believe the federal agencies should simply revert to the pre-2015 regulations and guidance that has been longstanding and is familiar to the regulated community.

We will continue to cover this important new development closely, while also continuing to advocate for irrigated agriculture with the Biden Administration as they proceed with current rulemaking. 

[Dan Keppen is Executive Director of Family Farm Alliance.]

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