The Supreme Court of the United States (SCOTUS) on October 3rd heard oral arguments in Sackett v. EPA, a case that many Clean Water Act (CWA) experts argue could define what “waters of the U.S.” (WOTUS) means under the CWA.
The outcome of the case could impact whether yet another WOTUS rulemaking could commence – this time under the Biden Administration. Currently, the Administration is considering finalizing their proposed rule reinstating the 1986 CWA rule and guidance (adjusted for past Supreme Court rulings) as the interim benchmark for the Environmental Protection Agency (EPA) and the Army Corps of Engineers to use in determining their jurisdiction over WOTUS under the CWA. The rulemaking process has been underway since the Trump Administration’s Navigable Waters Protection Rule defining WOTUS was thrown out in the initial days of the Biden Administration.
In the case, the high court is set to determine whether the U.S. Court of Appeals for the 9th Circuit set forth the proper test for determining whether wetlands are WOTUS under the CWA. The lower court referenced Justice Kennedy’s “significant nexus” test of jurisdictional waters, as opposed to the late-Justice Scalia’s “relatively permanent continuous surface flow” test.
The Family Farm Alliance is part of an agricultural coalition – led by the American Farm Bureau Federation – that submitted an amicus (“friend of the court”) brief to the court earlier this year.
“Our brief generally explains how the uncertainty and broad scope of jurisdiction asserted by the agencies over the years have made it difficult for farmers to operate, that the agencies have failed to create a workable definition, and the need for SCOTUS to clearly define WOTUS,” said Norm Semanko (IDAHO), the Alliance’s General Counsel. “Our brief was intended to help push the Court in the right direction and hopefully get them to put appropriate guardrails on the agencies moving forward.”
Others in the “ag” coalition include the American Sheep Industry Association, National Pork Producers Council, U.S. Poultry & Egg Association, The Fertilizer Institute, National Corn Growers Association, National Cotton Council, The National Council of Farmers Cooperatives, American Soybean Association, United Egg Producers, American Sugar Alliance, USA Rice and National Association of Wheat Growers.
Some of the initial media coverage of the oral arguments heard on October 3rd suggested that SCOTUS appears to be backing the Biden EPA.
“There has been endless speculation and reading of the tea leaves regarding questions raised by the Justices in the past week,” said Alliance Executive Director Dan Keppen. 
“Adjacency” and “significant nexus” issues were front and center before the Court last week.
After failing to get the U.S. Court of Appeals for the 9th Circuit to throw out a broad test for determining CWA jurisdiction, the Sacketts have proposed to the Supreme Court a two-step test for determining when a wetland is subject to the act.
Step one of the test is determining whether a wetland is inseparably bound up with a “water” by means of a continuous surface-water connection. The second step of the test is determining whether the “water” is among those waterbodies subject to Congress’s authority over the channels of interstate commerce.
Conversely, EPA is urging the Supreme Court to uphold the 9th Circuit’s backing of the “significant nexus” test outlined by then-Justice Anthony Kennedy in Rapanos v. United States. They also pointed to the fact that the Supreme Court in United States v. Riverside Bayside Homes held that adjacent wetlands may be defined as waters under the CWA.
General Counsel Semanko monitored the hearing and does not agree with all of the headlines.
“Based on the comments and questions to both lawyers from the Justices, I do not believe that the Court is likely to soften the ‘adjacency’ test for wetlands from the Riverside Bayview case,” said Mr. Semanko. “However, it is likely to dump the “significant nexus” test for WOTUS from the Rapanos case.”
He believes the most telling comment at the October 3rd hearing may have been when Justice Amy Barrett said that if the Court retains former Justice Kennedy’s significant nexus test from Rapanos, there would be no need to worry about whether wetlands are adjacent to navigable waters or not; all wetlands with any kind of connection to navigable waters would be jurisdictional.
“That tells me that Justice Barrett sees the significant nexus test as being inconsistent with the language of the Clean Water Act,” Mr. Semanko observed.
Conceivably, the Court could adhere to existing precedent regarding adjacent wetlands, but jettison the significant nexus test for WOTUS.
“That would still be a very good result for farmers, ranchers and the larger regulated community,” said Mr. Semanko.
CLICK HERE for the amicus brief submitted to the Supreme Court earlier this year on behalf of the Alliance and over a dozen other agricultural organizations.
