Justice Scalia’s WOTUS Test Could Narrow
EPA Jurisdiction Over Navigable Waters
Potentially game-changing news for Western farmers and ranchers hit the headlines yesterday when the U.S. Supreme Court announced that the justices will revisit and potentially limit the scope of Clean Water Act (CWA) precedent. The case to be taken up by the Supreme Court centers on a conflict between an Idaho couple, Chantell and Michael Sackett, and the Environmental Protection Agency (EPA). The Sacketts attempted to build a home on land the EPA claims to be federally protected wetlands under the CWA.
As reported in E&E News, the Supreme Court in 2012 sided with the Sacketts in their battle for judicial review of an EPA order that stopped them from building a house on their land and threatened fines of more than $30,000 a day. In a short order yesterday, the justices agreed to consider whether the 9th U.S. Circuit Court of Appeals erred when it affirmed that the federal government has permitting authority over the couple’s property in northern Idaho.
“The Sacketts’ ordeal is emblematic of all that has gone wrong with the implementation of the Clean Water Act,” said Damien Schiff, a senior attorney at Pacific Legal Foundation, which represents the Sacketts, in a news release. “The Sacketts’ lot lacks a surface water connection to any stream, creek, lake, or other water body, and it shouldn’t be subject to federal regulation and permitting.”
The interpretation of what qualifies as “waters of the U.S.” (WOTUS) under the CWA is the focus of this case.
Justice Anthony Kennedy provided the key vote in the 4-1-4 decision in Rapanos v. United States in 2006, where he disagreed with his colleagues on how to determine in which cases the federal government can exercise its CWA authority. In the years since Rapanos, federal courts have generally favored Justice Kennedy’s “significant nexus” test, which takes a broad view of federal jurisdiction, over Justice Antonin Scalia’s narrower definition requiring a wetland to have a continuous surface connection to a regulated water.
Former Justice Kennedy’s test had served as the basis for the Obama administration’s Clean Water Rule, which the Trump administration later replaced with the Navigable Waters Protection Rule. The Trump rule relied heavily on former Justice Scalia’s CWA interpretation. It was struck down by a federal court in Arizona last year, giving the Biden administration a chance to write a brand-new rule.
Yesterday’s decision to grant cert could provide a fresh perspective of what the language in the CWA really means, one expert told E&E News yesterday.
“They very well could address this whole issue fresh, what we call de novo, look at it in light of what the language of the statute really means,” said Larry Liebesman, a senior adviser at Dawson & Associates, a consulting firm that specializes in permitting. “With a 6-3 majority conservative, there’s a fair chance they may come out with a ruling that’s a lot closer to the Scalia interpretation.”
“Given this significant development, the Biden administration should immediately cease its efforts to issue a new WOTUS definition rule that will greatly broaden the federal government’s jurisdiction over privately owned land,” Reps. Graves and Rouzer said in a joint statement.
In 2019, the Family Farm Alliance submitted extensive formal comments to the EPA and U.S. Army Corps of Engineers in support of the approach to base a new WOTUS rule on former Justice Scalia’s plurality decision in the 2006 case Rapanos v. United States.
“[T]he plurality’s ruling in Rapanos, led by Justice Scalia, including important parts of Justice Kennedy’s opinion, as the basis for much of the proposed rule, would provide much needed clarity to the definition of WOTUS,” the Alliance letter stated.
With cert granted in the Sackett case, the Supreme Court could take action in October that removes the need for the Biden Administration to write a brand-new rule for what constitutes WOTUS under the CWA.
The Family Farm Alliance will continue to cover this important new development closely, while also continuing to advocate for irrigated agriculture with the Biden Administration as they proceed with current rulemaking.
We will continue to keep you informed on this and other developments impacting Western irrigated agriculture.