Supreme Court to Take Up Waters of the U.S. Case

by Colter Brown

The Supreme Court will hear a case that challenges the Waters of the U.S. Rule. For the second time in nine years, an Idaho family will take their battle over a wetlands designation before the high court. The justices will review a 9th circuit court ruling to determine if the proper tests were used to determine if wetlands were truly “Waters of the United States”, under the Clean Water Act.

The case itself goes back 15 years when the Sackett family tried to build a home on their property but were stopped by the EPA claiming the property contained a wetland and would face $30,000 per day fines if construction moved forward.

In 2012, the Supreme Court ruled in favor of the Sacketts, concluding in a unanimous opinion that landowners did have legal standing to challenge Clean Water Act determinations by EPA. Before that ruling, landowners were not able to legally challenge EPA wetland determinations.

The court case comes as the Biden administration is in the middle of the third rewrite to define waters of the U.S. since the Obama administration first wrote its rule in 2015. Following legal challenges to the Obama-era rule, the Trump administration withdrew it in 2017 and began its own rewrite, creating the Navigable Waters Protection Rule. That rule, backed by farm and ranch groups, was also challenged in court and withdrawn last year by Biden’s EPA.


The Sacketts, aided by the Pacific Legal Foundation, filed a petition with the Supreme Court last September asking the court to reconsider a ruling handed down by justices in 2006 in Rapanos v. U.S. In Rapanos, the court offered a plurality opinion over regulation of wetlands. Four Justices, led by the opinion author, the late Justice Antonin Scalia, ruled that only wetlands with continuous connections to surface water can be regulated. Justice Anthony Kennedy, in a concurring opinion, allowed for regulation of wetlands regardless of any surface connection so long as wetlands bear a so-called “significant nexus” with traditional navigable waters.

EPA, the Army Corps, the courts and Congress have been tied up ever since trying to define “waters of the U.S.” and where federal authority begins and ends when it comes to wetlands.

American Farm Bureau Federation President Zippy Duvall commented that, “AFBF is pleased that the Supreme Court has agreed to take up the important issue of what constitutes ‘Waters of the U.S.’ under the Clean Water Act. Farmers and ranchers share the goal of protecting the resources they’re entrusted with, but they shouldn’t need a team of lawyers to farm their land. We hope this case will bring more clarity to water regulations.

“In light of today’s decision,” Duvall continued. “We call on EPA to push pause on its plan to write a new WOTUS rule until it has more guidance on which waters fall under federal jurisdiction. For the past 10 years, Farm Bureau has led the charge on elevating the issue of government overreach in water regulations. The goal is simple, clean water and clear rules.”

 

 

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