Supreme Court hears oral arguments in Sackett vs. EPA; NCBA urges EPA to pause WOTUS rulemaking

The new session of the Supreme Court began with oral arguments in Sackett vs. EPA, a case that will inform how the agency defines Waters of the United States under the Clean Water Act.

The National Cattlemen’s Beef Associaiton is urging EPA to pause its WOTUS rulemaking until the outcome of the case is clear.  

Kaitlynn Glover, executive director of NCBA natural resources and the Public Lands Council, says producers need certainty.

“We’ve had a shift in the WOTUS definition on average once every 3.8 years. The regulatory process takes many months and so you see a rule that is barely implemented before there is another rulemaking or a court decision to change that interpretation. That uncertainty affects farmers and ranchers, it affects the agency’s ability to be good partners or responsibly regulate and at the end of the day it’s not a good way to do business. It creates unpredictability, it creates uncertainty, and that’s something that’s absolutely not acceptable as we see going forward. We much prefer a clear and predictable definition and think that the agency’s pathway to get there is a temporary pause to wait for the court so that we’re not seeing further perpetuation of that uncertainty.”

NCBA filed an amicus brief before the Supreme Court and filed comments on the Biden administration’s proposed WOTUS rule.

“Having a clear, definitive, durable, and reasonable definition of what a Waters of the United States is, is key to our producers and the good conservation work they do,” she says.

She says the case will now go into deliberation, and the Supreme Court will move through the rest of its fall docket. NCBA expects a decision in early 2023.

Glover provided some background on the Sackett vs. EPA case and what led to the oral arguments on Monday.

“It all started in 2004 when the Sackett couple purchased a lot in Idaho and went through this process with the EPA with respect to a permit. The core question is whether the wetlands in question in their case are jurisdictional for federal regulation,” she says. “What the court heard yesterday, was arguments essentially trying to define where the jurisdiction begins and ends with respect to the Waters of the United States. WOTUS is something that has been top of mind for cattle producers, agricultural producers, and really for a lot of people in this space for at least the last six years.”

She says it’s complicated because there is a regulatory process the administration is taking to define and set boundaries on what a Waters of the US is and at the same time, the Supreme Court is taking a case that will inform how the agency arrives at the conclusion of what WOTUS is.

“In the past, the Supreme Court has enacted a couple different interpretations. One is the significant nexus test, where a regulated body has to be close enough to another regulated body in order to count as a WOTUS. Another is the relative permanence test, the persistence of that water feature being a key factor in determining jurisdiction,” she says. “What we saw this week was a melding of these two issues where the Supreme Court heard not only that there has been significant whiplash back and forth in the regulatory definition of WOTUS, but also that there remains some uncertainty as to what counts.”

Glover says as part of the amicus brief, NCBA has held that both the significant nexus test and the relative permanence test should apply in order to be clear. She says it’s the most appropriate test of the Clean Water Act authority.

Last year, the EPA and Army Corps of Engineers announced plans to initiate a new rulemaking process that restores the protections in place prior to the 2015 WOTUS implementation. EPA Administrator Michael Regan had said the agencies determined that the 2020 Navigable Waters Protection Rule led to ‘significant environmental degradation.’

Glover says that’s why NCBA is urging the EPA to pause this rulemaking in light of the court’s consideration.

Audio: Kaitlynn Glover

  • If the Gov’t wants to designate a wetland, stream, lake or anything that hinders your value of your land they need to pay just like a freeway or anything else. Wetland credits are selling for $25000/acre, that is what the Govt needs to pay. Otherwise it constitutes a takings which is a violation of the 5th Amendment of the Constitution. Where are our Senators and Representatives on this?

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