The U.S. Supreme Court recently delivered a ruling that limits the EPA’s authority to regulate certain bodies of water under the Clean Water Act (CWA) and provides a clearer definition for Waters of the United States (WOTUS), as part of their decision on landmark case Sackett v. U.S. Environmental Protection Agency. Texas A&M University associate professor and agricultural law specialist Tiffany Lashmet weighs in on the implications for the U.S. cattle industry.
What was the working interpretation of WOTUS under the Supreme Court’s previous Rapanos decision before the Sackett case?
There was a great deal of confusion about the proper definition of WOTUS after the 2006 U.S. Supreme Court decision in Rapanos. In that case, a plurality of four justices agreed with a “relatively permanent body of water” test attributed to Justice Anthony Scalia. A fifth justice, Justice Kennedy, joined the plurality in the outcome of the case, but put forth a different test, one based on a “significant nexus” standard to get to that result. This left regulators, lawyers and landowners uncertain about the proper definition of WOTUS.
It was with this backdrop that the EPA and U.S. Army Corps of Engineers have sought to draft a regulatory definition of WOTUS. Since 2016, the three different presidential administrations have each drafted their own definition. The Obama and Trump versions were challenged and withdrawn, and the Biden rule which was finalized earlier this year is currently in effect in about half the U.S. states but is stayed in the remaining states due an injunction as part of ongoing litigation.
How does the Supreme Court’s new decision written by Justice Alito on the Sackett case affect how WOTUS is defined?
The key takeaway from the majority opinion is that the court unanimously held that Justice Kennedy’s “significant nexus” test is not the proper test to analyze whether a wetland is jurisdictional under the CWA. Instead, a majority of the court agreed that the proper test is whether the wetland has a “continuous surface connection to bodies [of water] that are ‘waters of the United States’ in their own right, so that they are ‘indistinguishable’ from those waters.”
There are still questions that remain, however. For example, the court did not address the proper test to determine whether a tributary is a WOTUS, which has been another commonly litigated issue.
What is going to happen to the Biden administration’s interpretation of WOTUS now?
That remains to be seen, although most legal scholars and commentators agree that the rule will likely have to be substantially re-written. The reason for this is the prominence of the “significant nexus” test that is included in the Biden rule. The likely approach would be to withdraw the current rule and then release a revised version to go through notice and comment rulemaking.
What are the implications of the Supreme Court’s new ruling for farmers and ranchers?
From a federal jurisdiction and permitting requirement perspective, the decision is likely favorable to farmers and ranchers for two reasons. First, it does narrow the scope of wetlands that are jurisdictional pursuant to the CWA, meaning that there are likely now fewer situations where farmers or ranchers would need to obtain a federal permit. Second, most commentators would likely say that the definition in Sackett is clearer and easier to apply on the ground than prior definitions, including the “significant nexus” test proposed by Justice Kennedy and included in both the Obama and Biden administration regulations.
What do you think about the different concurring opinions (Kagan, Kavanaugh) and how they defined EPA’s authority under the Clean Water Act?
Again, it is important to remember that although there are concurring opinions, the justices unanimously agreed that the “significant nexus” test is improper to determine whether wetlands are a WOTUS, and unanimously agreed that the Sackett property is not a jurisdictional wetland. The concurring opinions point out differences in how they reached these ultimate conclusions. Justices Thomas and Gorsuch appear to take an even narrower view of WOTUS, writing extensively about how Congress relied on the Commerce Clause power in order to pass the CWA, and noting they believe there should potentially be narrower construction of the act to apply only to waters involved in interstate commerce. Justices Kavanaugh, Kagan, Sotomayor and Jackson would all slightly expand the definition of a jurisdictional wetland by including those wetlands that are contiguous or bordering a covered water (the majority test) but also include those “wetlands that are separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune or the like.” The majority opinion does not include this second category of wetlands.
How is the Supreme Court’s new 'continuous surface connection' standard different from the 'significant nexus' test?
The two tests are significantly different. The “continuous surface connection” requires wetlands to have a continuous surface connection with a water of the U.S. (defined as relatively permanent bodies of water connected to traditional interstate navigable waters) such that it is difficult to determine whether the water ends and the wetlands begin. In other words, the wetlands must physically touch the jurisdictional water in order to be considered a WOTUS.
Under the “significant nexus” test, however, Justice Kennedy authored in his Rapanos concurring opinion provided that wetlands were jurisdictional if they, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical and biological integrity of other covered waters more readily understood as “navigable.”
Comparing the two, the “continuous surface connection” test is both narrower as well as more of a bright-line rule that is more easily understood and applied by landowners, developers, agricultural producers and others.
What happens next for the Sacketts now that their case has been remanded back to the U.S. 9th Circuit Court of Appeals?
Given the 9-0 decision that the Sackett property does not constitute a jurisdictional water, the case should be dismissed, and they should be able to proceed with building their house on the land without the necessity of a federal permit.
What’s next with WOTUS regulation as far as this administration is concerned?
The assumption is that the administration will likely re-write the current WOTUS definition, but exactly how or when that will happen, or what the revised definition might look like remains to be seen. Also keep in mind there are a number of lawsuits currently pending around the country challenging the legality of the Biden rule. There will likely be additional motions filed by challengers pointing to the Sackett case as precedent supporting their position that the Biden rule is improper.
