In a highly anticipated announcement, the U.S. Supreme Court handed down its ruling in Sackett vs. EPA. Faced with yet another sweeping application of the term “waters of the U.S.” (WOTUS) by EPA, the Supreme Court has set a clear and practical definition which respects the words and intent of Congress in the Clean Water Act.
Farmers take water quality seriously: their livelihoods depend on it. For this reason, Farm Bureau has been calling for clarity when it comes to WOTUS for decades. The 2015 and 2023 rules set vague boundaries which would allow the regulation of vast areas of land as “waters.” The EPA expanded federal authority far beyond what Congress intended, and the Supreme Court has now unanimously rejected this overreach.
The Sackett ruling addresses 3 key components of the Clean Water Act and the authority of the federal government:
- Use of the significant-nexus test. All nine Justices agreed EPA’s significant-nexus test—the agency’s tool to assert more authority over private land—was an overreach. EPA’s subjective “test” gave the federal government the ability to regulate mostly dry features and wetland miles from the nearest “navigable” water, based on an indefinite mix of complex scientific factors. Farm Bureau has fought this land grab for years with the agencies and in the courts and finally, the highest court in the land has said it must stop.
- Definition of “waters of the United States”. For years, farmers would need a team of lawyers and consultants to have any hope of determining whether their land was regulated “waters,” and many would need federal permits for basic farm work like moving dirt and building fences. The ruling clarifies the Clean Water Act’s definition of “waters” to encompass “only those relatively permanent, standing, or continuously flowing bodies of water forming geographical features that are described in ordinary parlance as streams, oceans, rivers, and lakes.” This provides a much clearer determination of which waters are subject to jurisdiction by the federal government.
- Jurisdiction of wetlands. In this ruling, the Supreme Court spells out wetlands are subject to the Clean Water Act only if they are “indistinguishable from waters of the United States.” The Court also goes on to require EPA to establish two criteria before asserting jurisdiction over these wetlands:
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- First, the adjacent body of water must constitute waters of the United States as previously defined (i.e., a relatively permanent body of water connected to traditional interstate navigable waters).
- Second, the wetland must have a “continuous surface connection to bodies that are ‘waters of the United States’ in their own right”.
While there’s still some work to be done to incorporate the Court’s decision into clean water regulations, this is a massive win for farmers and property owners all across the country. This victory is a powerful example of the strength of Farm Bureau when working together with a united voice on behalf of all farmers. When the Sacketts’ case rose to the Supreme Court, AFBF organized a group of 14 national agricultural organizations and coordinated with 20 state Farm Bureau organizations, including Tennessee, to file a strategically focused set of friend-of-the-court briefs. These briefs explained the impact of this issue on farming and emphasized the important role of state and local authorities in protecting land and water resources. There is no question this advocacy made a difference. In fact, the state Farm Bureau brief was even cited by the Court, and the Court adopted the exact legal framework argued for in the brief.
So, what’s next? EPA’s latest 2023 WOTUS rule is still on the books, but this decision will send EPA back to the drawing board with clear directions and boundaries.
“AFBF appreciates the Supreme Court Justices for their careful consideration of the implications of Sackett v. EPA,” said AFBF president Zippy Duvall. “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.”
