SCOTUS Sides With Sacketts in CWA Case

LINCOLN, Neb. (DTN) -- The Supreme Court sided with two Idaho property owners in their ongoing wetlands dispute with EPA on Thursday, ruling EPA's use of the significant nexus test when making Clean Water Act determinations is too broad.

In writing the 5-4 majority opinion, Justice Samuel Alito said EPA has misinterpreted the Clean Water Act's reach when it comes to the property owned by Michael and Chantell Sackett and that the term significant nexus isn't found in the Clean Water Act.

"In sum, we hold that the CWA extends to only those 'wetlands with a continuous surface connection to bodies that are 'waters of the United States' in their own right,' so that they are 'indistinguishable' from those waters," Alito said in his opinion.

"This holding compels reversal here. The wetlands on the Sacketts' property are distinguishable from any possibly covered waters."

The ruling will naturally lead to lower courts examining how the decision applies to the Biden administration's definition of "waters of the U.S." that right now is under court injunctions in at least 26 states tied to two separate courts.

The American Farm Bureau Federation praised the Supreme Court decision, stating 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."

Zippy Duvall, president of AFBF, then called on the Biden administration to rewrite its waters of the U.S. 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.

EPA Administrator Michael Regan expressed disappointment in the court ruling, stating the Supreme Court decision "erodes longstanding clean water protections." Regan added, "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."

The Sacketts have been battling EPA since 2007 for the right to build on land the agency has deemed to be a wetland. Their property sits on a lakefront and they've argued that there is no surface connection between the lake and their land.

Alito said in the majority opinion that the Clean Water Act's reach is far narrower than EPA has opined.

"The EPA, however, offers only a passing attempt to square its interpretation with the text and its 'significant nexus' theory is particularly implausible," Alito writes. He said the definition of waters of the U.S. is more limited. "And, in any event, the CWA never mentions the 'significant nexus' test, so the EPA has no statutory basis to impose it," Alito stated.

One environmental group characterized the court's decision as 'stripping out key protections' from the Clean Water Act.

Manish Bapna, president and CEO of the Natural Resources Defense Council, said in a statement to DTN that the court "ripped the heart" out of the law.

"The majority chose to protect polluters at the expense of healthy wetlands and waterways," Bapna said. "This decision will cause incalculable harm. Communities across the country will pay the price."

The agency's use of the significant-nexus standard has been at the heart of opposition from agriculture and other industries to recent iterations of the waters of the U.S. rule.

The standard essentially allows the EPA and the U.S. Army Corps of Engineers to determine waters are covered by the law if there is a chemical connection to larger navigable water bodies.

The Sacketts have filed many appeals on the EPA decision in the past 15 years.

The U.S. Court of Appeals for the Ninth Circuit had sided with EPA's wetland assessment on the Sacketts' property. The court's ruling sends the appeals court decision back to the court for reconsideration.

Alito said in the majority opinion that EPA's interpretation of the law "gives rise to serious vagueness concerns in light of the CWA's criminal penalties."

"Due process requires Congress to define penal statutes 'with sufficient definiteness that ordinary people can understand what conduct is prohibited'," Alito writes, "and 'in a manner that does not encourage arbitrary and discriminatory enforcement.' Yet the meaning of 'waters of the United States' under the EPA's interpretation remains hopelessly indeterminate.

"The EPA contends that the only thing preventing it from interpreting 'waters of the United States' to 'conceivably cover literally every body of water in the country' is the significant-nexus test."

Alito's ruling noted in defining "waters of the U.S.," the court revisits what has been "a contentious and difficult task." Alito said the phrase "waters of the U.S." has sparked decades of EPA action and litigation.

The boundary between "significant" and insignificant is far from clear, Alito wrote.

EPA argued that "waters" also includes wetlands. But Alito points to the presence of puddles and also noted in an earlier decision that ponds are not considered part of waters of the U.S.

Alito went into an extensive writing about where wetlands fall in the CWA.

Justice Brett Kavanaugh concurs in his opinion but said that the "wetlands with a continuous surface connection to bodies that are 'waters of the United States' in their own right so that they are "indistinguishable" from those waters."

Kavanaugh wrote that he agreed the Sacketts' property should not have been covered under the Clean Water Act, but he said the majority ruling goes too far in removing the significant nexus test. The court's new "continuous surface connection" goes against 45 years of consistent agency practice and court precedents, Kavanaugh wrote.

"By narrowing the act's coverage of wetlands to only adjoining wetlands, 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."

DTN Ag Policy Editor Chris Clayton contributed to this report.

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @DTNeeley

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