The Clean Water Act is the primary federal law regulating water pollution in the United States. Its objective is to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. Since its passage in 1972, the CWA has given the Environmental Protection Agency authority to regulate “waters of the United States” (or, WOTUS).
But what exactly is the “waters of the United States?” It’s a question that a lot of folks have spent a lot of time studying, including those in agriculture. Over the last decade, the EPA threatened to include temporary mud puddles and flooded areas within its definition of WOTUS. And that has caused a lot of uproar in agriculture. We’ve also experienced uncertainty because the interpretation of WOTUS has ping ponged depending on who resides in the White House.
But now the U.S. Supreme Court has given us its opinion about what constitutes WOTUS. And the decision was a major win for agriculture and land owners.
Here’s the basic premise if you don’t want to read the entire opinion. SCOTUS’s decision in Sackett v. EPA was a 9-0 ruling that held that the CWA does not extend to wetlands that do not have a continuous surface connection with “waters of the United States.” The case came from a dispute between the Sacketts, a couple who had purchased property in Idaho, and the EPA, which had issued a compliance order prohibiting the Sacketts from developing their property because it was located in a wetland. The Sacketts challenged the EPA’s order, arguing that the CWA did not apply to their property because it was not a “water of the United States.” The EPA, however, disagreed because the wetland had a “significant nexus” to waters of the United States.
But the Supreme Court agreed with the Sacketts in an opinion that ushers in a much more narrow interpretation of WOTUS. In a majority opinion written by Justice Alito, the Court held that the CWA’s definition of “waters of the United States” is limited to “relatively permanent bodies of water” that are “navigable in fact or by law.” The Court declined to interpret the phrase beyond its statutory framework and rejected the significant-nexus test as beyond CWA’s scope. Instead, the Court found that the wetlands on the Sacketts’ property did not meet the definition of WOTUS because the wetlands were not “relatively permanent” and were not “navigable.”
The Court’s opinion is a huge change to a phrase that’s seen more than its fair share of litigation. As AGDAILY reports, there’s plenty of unanswered questions that will probably require additional legal analysis:
For example, how brief an interruption in surface connection must be for wetlands to remain jurisdictional; whether continuous surface connections can be established by ditches, swales, pipes, or culverts; how difficult must it be to discern the boundary between a water and a wetland.“SCOTUS on WOTUS: Breaking down the opinion for agriculture,” AGDAILY
Some people are freaking out about the opinion, which isn’t all that unexpected. But let’s keep it in perspective. It doesn’t mean that the Court stripped the EPA from all meaningful regulatory authority over water pollution. This opinion doesn’t compromise our water supply. It won’t allow a free-for-all opportunity for polluters. It just means the Supreme Court reigned in the EPA’s overreach and limited the CWA to its statutory language.
I’m curious to know how lower courts will interpret SCOTUS’s decision, and how this new path will limit EPA’s meddling on farms. But at the very least, we can be certain that the EPA won’t be regulating mud puddles any time soon. And that’s a huge win for farmers.