Supreme Court Decision Redefines a ‘Water of the US’

Environmental Protection Agency Administrator Michael Regan was asked about the Supreme Court decision regarding the Waters of the U.S. rule during a press briefing Thursday. While promoting agency investments in West Virginia, reporters asked Regan for a response to the decision.

“Obviously, the Supreme Court ruling is very recent, as early as this morning, and we’re still combing through the implications. I am deeply disappointed that the Court seemingly is taking away EPA’s ability that has been standing for 50 years, but we’re going to have to take a close look at that.”

Regan stressed the importance of wetlands for water quality.

“We know that wetlands are nature’s water filters, and we know that many of our coal communities and many of our communities rely significantly on wetlands to reduce pollution, to reduce runoff so that we can have good quality drinking water. There’s no doubt that we are very disappointed, but we’re going to take a closer look at what the ruling actually means, but let me be clear, we’re going to continue to work as hard as we can to follow the law but also to protect all communities and provide safe, affordable drinking water for every community in this country. That is our goal.” 

The Supreme Court ruled in favor of the Sackett family, who challenged the 2015 EPA WOTUS. While the ruling doesn’t immediately apply to the new WOTUS rule by the Biden administration, the court did say the new rule would not stand judicial scrutiny.

The High Court, in a victory for the Sacketts of Idaho, the American Farm Bureau, National Cattlemen and for private property rights, ruled a wetland must have a “continuous surface connection” with a U.S. water, or one joined to a navigable interstate water.

National Cattlemen’s Mary-Thomas Hart.

“The holding against the significant nexus test is certainly, at a minimum, going to require the Biden Administration to pull their 2023 definition back for some serious reconsideration and revisions.” 

The Supreme Court noted that the uncertain meaning of “waters of the U.S.” has been a “persistent problem, sparking decades of agency action and litigation.”

The Justices criticized the Biden rule for potentially covering nearly all waters and adjacent wetlands…and “putting a staggering array of landowners at risk of criminal prosecution” with its vagueness—for such mundane activities as moving dirt.

“NCBA argued to the court, that there’s no way we can constitutionally hold someone liable for a violation of the Clean Water Act, if they’re not even aware that they’re violating the Clean Water Act, right? And the significant nexus test was so broad and so vague that someone could violate the Clean Water Act without even realizing it.” 

The Supreme Court concluded Congress never intended to alter the federal/state balance over private property, conferring EPA power over wetlands merely nearby, versus those “indistinguishable” from U.S. waters.

Courtney Briggs, AFB Senior Director of Government Affairs.

“This is an incredible victory for farmers and ranchers across the country…we have been entangled in uncertainty since the inception of the Clean Water Act. And the EPA has certainly abused their ability to set a regulatory definition, and, over several decades, have greatly expanded that jurisdictional reach. And the court’s decision today reins them back in, and shoots down the use of their regulatory test—the significant nexus test.” 

As for the Biden EPA and what’s next.

“The EPA is certainly going to have to come back to the drawing board. The significant nexus test is really a cornerstone of their rulemaking…and now the courts have said, that is not the ‘law of the land.’ And they have said that the ‘Scalia test,’ a relatively permanent test, is the ‘law of the land.’ And that is really what AFBF has been advocating for.” 

Briggs says it will now be up to EPA to review the Supreme Court decision and provide some guidance to the regulated community—but she adds…

“In the long run, this is going to put the guardrails on the agencies and what they can do, as part of the regulatory rulemaking in the future—and that is huge. But, for right now, there is going to be some uncertainty throughout the countryside, just because the Biden Administration rule used the significant nexus test, but so did the pre-2015 regulatory regime.”   

Still, Briggs concludes, the Supreme Court’s unanimous decision is an “incredible win for landowners.”