In a major victory for farm groups, the Supreme Court on Thursday significantly reduced the scope of the Clean Water Act as interpreted by the federal government, ruling that the law only regulates wetlands when they are “as a practical matter indistinguishable from waters of the United States.”
In doing so, five justices adopted a test from the court’s 2006 plurality opinion in Rapanos penned by late Justice Antonin Scalia, which they quoted from liberally as they rejected the “significant nexus” test crafted by former Justice Anthony Kennedy. (See opinion here.)
The decision likely means the EPA and Army Corps of Engineers will have to re-examine their rule that went into effect in March, in which they “maintain that the significant-nexus test has been and remains sufficient to establish jurisdiction over ‘adjacent’ wetlands,” Justice Samuel Alito said, writing for the majority, which included Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch and Amy Coney Barrett.
Although all nine justices agreed that the 9th Circuit Court of Appeals erred in finding for the EPA in an enforcement case against two Idaho landowners who maintained that the wetlands on their property did not qualify as “adjacent,” the court was split on the proper test for determining what qualifies as jurisdictional.
The Rapanos plurality was correct when it said that “waters” in the CWA include only “relatively permanent, standing or continuously flowing bodies of water,” the court said.
While concurring in the judgment that the case should be sent back to the 9th Circuit for further proceedings, four justices said the majority had gone too far in trimming the federal government’s sails – Elena Kagan, Sonia Sotomayor, Brett Kavanaugh and Ketanji Brown Jackson.
Kagan said, as she did when the court ruled last year that EPA had gone too far in regulating greenhouse gas emissions from power plants, that the court had substituted “its own ideas about policymaking for Congress’s. The court will not allow the Clean [Water] Act to work as Congress instructed. The court, rather than Congress, will decide how much regulation is too much.”
President Joe Biden issued a statement Thursday afternoon criticizing the ruling.
"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," Biden said.
He said the White House would work 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."
EPA Administrator Michael Regan said the ruling "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," Regan said.
But the president of the American Farm Bureau Federation, Zippy Duvall, welcomed the decision.
“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," Duvall said in a statement.
The president of the National Cattlemen’s Beef Association, Todd Wilkinson, said 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.”
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Jim Murphy, director of legal advocacy for the National Wildlife Federation, said the Clean Water Act "has been instrumental in revitalizing and safeguarding drinking water sources for people and wildlife, wetlands for flood control, and habitats that sustain our wildlife heritage. Federal protections that don’t depend on local politics or regional polluter influence are essential to vulnerable and disadvantaged communities nationwide."
The Sackett decision "removes these vital protections from important streams and wetlands in every state," Murphy said. "We call on both Congress and state governments to step in, plug the gap, and protect our threatened waters and the people that depend on them.”
But Rep. John Duarte, R-Calif., told Agri-Pulse he doesn't think Congress has any reason, or desire, to fiddle with the CWA. Despite attempts over the year to tackle the "waters" issue, Congress has not amended the law since 1977.
"I don't think there is any motivation for Congress to give these agencies the powers that they were claiming under the Clean Water Act," he said.
Duarte was prosecuted by the Justice Department for filling vernal pools as part of what he said was routine plowing of a wheat field. He settled the case in 2017 for $1.1 million while admitting no liability.
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