The WOTUS ruling was a win for ag. So what's next?
The EPA will have to revisit its "waters of the U.S." definition after Supreme Court ruling.
Farm groups used words like “rejoice” in their reaction to a Supreme Court ruling that will limit the federal government's authority on waterways and drainage. But the future of water regulations is still somewhat muddy.
The May 25 ruling is Sackett v. EPA narrows the "waters of the U.S.” definition under the Clean Water Act to “navigable waters” and those wetlands with a “continuous surface connection” to those waters as being subject to federal regulation. The ruling unanimously rejects the previous “significant nexus” standard that farm groups and other industry groups argued amounted to government overreach.
"Cattle producers across the country can breathe a sigh of relief today. 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,” Todd Wilkinson, South Dakota cattle producer and president of the National Cattlemen’s Beef Association, said in a statement after the ruling was announced.
“Today’s Supreme Court opinion refocuses the Clean Water Act on protecting our water resource through regulatory clarity." - NCBA President Todd Wilkinson on Supreme Court Sackett v. EPA WOTUS Rulinghttps://t.co/LaX35nV37H— National Cattlemen's Beef Association (@BeefUSA) May 25, 2023
But Kale Van Bruggen, a Minnesota attorney specializing in water and drainage issues, said it will take some time for the Environmental Protection Agency and Army Corps of Engineers to interpret the ruling and provide guidance to staff.
“It takes some time for big decisions like this to trickle down to the boots on the ground staff who implemented the laws,” said Van Bruggen, an attorney with Rinke Noonan in St. Cloud, Minnesota, but with clients in other Midwest states. “I'll be watching and waiting to see what the guidance is from the top of the agency to its employees on the ground and what impact that will have on folks.”
He said farmers and ranchers will need to continue to be cautious if there are ways to mitigate the risk of potentially violating the Clean Water Act and incurring criminal penalties to do so. But Thursday’s ruling makes that less likely.
“Part of the opinion that I found particularly important for farmers in the Prairie Pothole region was the comments the court made about when you have the Clean Water Act with criminal penalties and very, very severe civil penalties. That is a situation where the law needs to be absolutely clear about what's wrong — what's right. And to say that you need to rely on the boots on the ground, EPA staff or Army Corps to go through a long list of analysis that they had to go through to do the significant nexus test, flies in the face of that,” Van Bruggen said.
The EPA will likely have to go back to rewriting the WOTUS rule , a process that can take months, based on the Supreme Court decision.
The EPA, in a statement after the ruling, said this:
“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.”
There are still pending legal challenges to the Biden administration’s WOTUS rule.
One of the pending legal cases was filed in federal court in Fargo, North Dakota. Judge Daniel Hovland in April, issued an injunction, suspending the implementation of the Biden administration rule in 24 states, including North Dakota, South Dakota and Iowa. That rule was announced earlier in 2023, despite the pending Sackett decision.
“Today’s victory will help us challenge the EPA’s new, even broader attempt to overregulate America’s waters,” Iowa Attorney General Brenna Bird said in a statement. “President Biden’s new definition allows the federal government to regulate as much as 97% of Iowa land ... . I hope the EPA learned its lesson in Sackett v. EPA because we’re going to keep the fight going in our WOTUS lawsuit against the Biden rule to protect Iowa’s farmers, landowners, homebuilders, and producers.”
In addition to the challenge filed in North Dakota, there was another challenge filed in Texas , led by the American Farm Bureau Federation, and another in Kentucky. It's not clear how those cases will be resolved.
Today our nation’s highest court affirmed private property rights of farmers & ranchers. We appreciate SCOTUS's careful consideration of Sackett v EPA and renew our call for EPA to rewrite the WOTUS rule in a way that respects farmers & provides clarity as we care for our land.— Zippy Duvall (@ZippyDuvall) May 25, 2023
“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,” Farm Bureau President Zippy Duvall said in a statement. “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.”
Charles Yates was part of the litigation team for the Pacific Legal Foundation that argued the case for the Sacketts, a couple from Idaho that was told they could not add fill material to a piece of property near a lake.
The case dates back to 2007, a year after the Supreme Court ruling established the significant nexus test. Yates said the Biden rule hinged on using the significant nexus test, and rejecting that test should end “the constant game of regulatory ping pong” that has ensued.
“The federal agencies have been utterly unable since 2006 to come up with a clear definition of what is a WOTUS that satisfies the requirements of the Clean Water Act and survives judicial review, as you've seen, every administration since Bush has tried and failed to give effect to the Clean Water Act and defend it,” Yates said.
He said there are three other key outcomes from the ruling:
- It reinforced the rights of property owners.
- It reestablished the separation of powers, curtailing the power of the EPA and forcing it to stick closer to what Congress intended with the Clean Water Act.
- It backed up the concept of federalism and the ability of states to regulate the environment.
“Because, really, the states and local governments are in a much better position to assess whether or not a project will be harmful, how land should be used, than bureaucrats in Washington, D.C., are,” Yates said.