Supreme Court narrows WOTUS reach

WASHINGTON — The U.S. Supreme Court ruled unanimously on May 25 in favor of the Sackett family in Sackett v. EPA that narrows the extent of federal jurisdiction over bodies of water under the Clean Water Act.

The ruling reined in the power of the Environmental Protection Agency, stating that wetlands are not “waters of the U.S.,” as defined in the 1972 Clean Waters Act.

Wetlands need to be directly connected to bodies of water in order to qualify under the statutory definition, according to the majority opinion of the court.

The plaintiffs in the water-regulation case, Chantell and Michael Sackett, first sued the EPA in 2007, after the agency tried to stop them from building a home on property they purchased, claiming it was on “navigable waters.”

It was a separate but related case that reached the Supreme Court, which ruled that the homeowners had standing to appeal what the EPA had called a “final decision.”

The decision could have a direct impact on the Biden administration’s WOTUS rule, a regulation that defines which streams and wetlands are protected by the Clean Water Act and relies on a significant nexus test.

At least five federal lawsuits have challenged the WOTUS rule, and more than two dozen states have joined the challenges.

Damien Schiff, who represented the Sacketts at the Supreme Court, said the decision appropriately narrowed the reach of the law.

“Courts now have a clear measuring stick for fairness and consistency by federal regulators. This ruling is a profound win for property rights and the constitutional separation of powers,” Schiff said in a statement issued by the property rights-focused Pacific Legal Foundation.

EPA Administrator Michael Regan said in a statement that the Clean Water Act has been responsible for “transformational progress” in cleaning up the nation’s waterways.

“I am disappointed by the Supreme Court decision that erodes longstanding clean water protections,” he said.

Agriculture and environmental groups weighed-in on the decision.

Reactions

“Indiana Farm Bureau is pleased that the Supreme Court, in Sackett v. EPA, has narrowed the reach of the ineffective federal clean water regulations. This is a victory for Indiana farmers who, for far too long, have had to deal with complicated and overreaching regulations on their farms. This ruling narrows the jurisdictional reach of the Clean Water Act and protects private property rights. Now farmers across the country can breathe a sigh of relief as we have been given the clarity we have been seeking and the federal government’s overreach has been put in check. We now know that wetlands need a continuous surface connection to navigable waters to be regulated.”

Randy Kron, president

Indiana Farm Bureau

“Illinois Farm Bureau celebrates today’s unanimous decision by the Supreme Court regarding Sackett v. EPA, which confirms EPA overstepped its authority under the Clean Water Act by restricting private property owners from developing their land. Additionally, this ruling is the law of the land and directs the Biden administration to revisit WOTUS and issue a clear rule that doesn’t require farmers to hire a team of attorneys to care for their land.”

Richard Guebert Jr., president

Illinois Farm Bureau

“This sensible ruling preserves protections for our nation’s valuable water resources while providing clarity to farmers and others about the process of determining federal jurisdiction over wetlands.”

Tom Haag, president

National Corn Growers Association

“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. Today’s Supreme Court opinion refocuses the Clean Water Act on protecting our water resource through regulatory clarity.”

Todd Wilkinson, president

National Cattlemen’s Beef Association

“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.”

Zippy Duvall, president

American Farm Bureau Federation

“The decision, which strikes down the ‘significant nexus’ test in determining what is considered a ‘waters of the United States,’ is a win for agriculture. While regulatory interpretation from the EPA will take time, the SCOTUS decision is a great first step in providing the clarity that the fertilizer industry needs for long-term planning and capital investments that will allow us to continue providing the critical nutrients that feed the crops that feed our communities.”

Corey Rosenbusch, president and CEO

The Fertilizer Institute

Opposition

Manish Bapna, Natural Resources Defense Council president and CEO, said the ruling strips key protections from the Clean Water Act, weakening the law and narrowing its ability to defend the quality of the nation’s waterways.

“The Supreme Court ripped the heart out of the law we depend on to protect American waters and wetlands. The majority chose to protect polluters at the expense of healthy wetlands and waterways. This decision will cause incalculable harm. Communities across the country will pay the price,” Bapna said.

“What’s important now is to repair the damage. The government must enforce the remaining provisions of law that protect the clean water we all rely on for drinking, swimming, fishing, irrigation and more. States should quickly strengthen their own laws. Congress needs to act to restore protections for all our waters.”

Prior to this opinion, the majority of Indiana’s remaining wetlands were under protection of the federal Clean Water Act, but the court’s statement that the Clean Water Act extends to “only those wetlands with a continuous surface connection to bodies that are waters of the United States in their own right” means the majority of Indiana wetlands will not qualify, the Hoosier Environmental Council stated.

“This leaves the fate of most Hoosier wetlands in the state’s hands, and based on recent legislative action, this raises serious concern for the Hoosier Environmental Council. In 2021, Indiana’s General Assembly revised the state wetlands law to significantly reduce protection for wetlands. This year there was an attempt to reduce it further, but that attempt was averted. This despite the fact that Indiana has already lost close to 90% of its original wetlands,” the HEC said.

“Indiana needs the flood protection provided by wetlands more than ever. According to the Purdue Climate Change Research Center, average annual precipitation in Indiana has increased 5.6 inches since the 1890s and is on track to continue increasing.

“The HEC will continue to raise awareness among the public and elected officials about the value of Indiana’s remaining wetlands and will continue to fight to protect this priceless portion of our state’s natural infrastructure.”