SUPREME COURT RULES IN WOTUS

The Supreme Court of the United States (SCOTUS) handed agriculture a 5-4 decision in Sackett v. EPA. The decision— written by Justice Samuel Alito, heavily quoting the late Justice Antonin Scalia — finds that wetlands are only protected by the Clean Water Act if they have a continuous surface connection with a larger body of water that makes it “difficult to determine where the ‘water’ ends, and the ‘wetland’ begins.’” That interpretation provides an even more narrow reading of Clean Water Act jurisdiction than the Trump administration proposed in its 2020 Navigable Waters Protection Rule. That regulation only protected wetlands as “waters of the U.S.,” or WOTUS, if they had “relatively permanent” surface water connections with other nearby waterways and included protections for wetlands that were cut off from nearby waterways by human-made structures like roads or berms.

“This ruling is a game changer and a monumental victory for irrigated agriculture. No longer will farmers be required to hire an army of consultants just to figure out whether a wet spot on their property is regulated under the Clean Water Act. The test set forth by the Supreme Court, as adopted from Justice Scalia's plurality opinion in the Rapanos case, is refreshingly simple and clear:

• "Waters" refers only to “geographic[al] features that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes’” and to adjacent wetlands that are “indistinguishable” from those bodies of water due to a continuous surface connection.

• To assert jurisdiction over an adjacent wetland under the CWA, a party must establish “first, that the adjacent [body of water constitutes] . . . ‘water[s] of the United States’ (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the 'water’ ends and the ‘wetland’ begins.”

The significant nexus test, which has been used for most of the past two decades to greatly expand the federal government's jurisdiction over land and waters, is a dead letter - soon to be followed by the Biden Administration's WOTUS Rule as it must be rewritten to comply with this new Supreme Court ruling.