Court decision on WOTUS clips federal jurisdiction

The ruling in Sackett v. Environmental Protection Agency will have a wide range of potential implications for irrigation professionals and the land and water they work with.
BY LUKE REYNOLDS
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The Supreme Court ruled in favor of Michael and Chantell Sackett in the case of Sackett v. Environmental Protection Agency, No. 21-454, which answers some jurisdictional questions regarding the Waters of the United States and the reach of the Clean Water Act. 

The outcome, written for the majority by Justice Samuel Alito, rules that the Clean Water Act does not allow the Environmental Protection Agency, Washington D.C., to regulate discharges into some wetlands near bodies of water and limits the amount of regulation the EPA has in some waters of the United States.  

The 9-0 ruling supported the Sackett’s challenge of the EPA’s ability to bring an enforcement case against the Priest Lake, Idaho, landowners in 2007. The court also ruled 5-4 against the “significant nexus test” developed by former Justice Anthony Kennedy in the 2006 plurality opinion Rapanos v. United States, which held that only wetlands that have a continuous surface connection to a body of water are covered by the law. Instead, the Sackett ruling referred to a test put forward in the Rapanos plurality opinion written by Former Justice Antonin Scalia, in which the CWA only has jurisdiction on “relatively permanent, standing or continuously flowing bodies of water.” 

Alito was joined in the opinion by Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch and Amy Coney Barrett. 

The outcome is solidly a win for irrigation professionals, says Nathan Bowen, advocacy and public affairs vice president at the Irrigation Association. 

“This is a positive outcome for the industry,” Bowen says. “The court’s decision to narrow the scope of federal jurisdiction will help rein in federal overreach and will provide members of our industry needed clarity and confidence to do their work. We applaud the court in this decision.” 

Justice Brett Kavanaugh sided with the court’s three liberal justices in support of the significant nexus test ruling. He wrote that the “court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States.” 

Members of the Sacketts’ legal team say the ruling is a beneficial outcome for property owners. 

“The court’s ruling returns the scope of the Clean Water Act to its original and proper limits,” said Damien Schiff, a senior attorney at Pacific Legal Foundation who argued the case. “Courts now have a clear measuring stick for fairness and consistency by federal regulators. Today’s ruling is a profound win for property rights and the constitutional separation of powers.” 

The ruling also has significant implications for the farming community, according to Zippy Duvall, president of the American Farm Bureau Federation. Duvall writes that there is still work to be done. 

“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,” wrote Duvall. “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.” 

Even with the ruling, more work will need to be done to reconcile the decision with the current WOTUS rule enacted by the Biden administration, which was recently the focus of a failed attempt to overturn in the House of Representatives. Rep. Glenn “GT” Thompson, R-Pennsylvania, chairman of the House Committee on Agriculture, called the decision a victory for farmers, ranchers and land owners, while providing clarity. 

“In light of this decision, the Biden administration should withdraw its flawed final WOTUS rule,” he said. “It is time to finally put an end to the regulatory whiplash and create a workable rule that promotes clean water while protecting the rights of rural Americans.” 

The decision erodes longstanding clean water protections, according to EPA Administrator Michael Regan, who said he was disappointed by the ruling in a statement. 

While the EPA’s ability to regulate water pollution and protect critical water resources under the CWA is still the law, the Sackett decision undermines those capabilities, said Senator Tom Carper, D-Delaware, in a statement. “The Supreme Court has turned back the clock on critical clean water protections, changed the decades-long understanding of the law and put America’s remaining wetlands in jeopardy,” he said.  

President Joe Biden said in a statement that the ruling is detrimental to the nation and jeopardizes the country’s natural resources.  

“My team will 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,” he said. “We will work with states, cities, and Tribal communities to pass and uphold critical protections for their residents. Our fight for clean water for all must go on, and it will.” 

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