In a major victory for farmers and property rights, the U.S. Supreme Court has sided in favor of an Idaho couple, the Sacketts, in a significant environmental case against the EPA and Army Corp of Engineers. This decision has national implications for the agriculture industry and affirms the long-standing position Farm Bureau has taken on the Waters of the U.S. (WOTUS) rule.
What is the history of the case?
The case began in 2008, when private property owners Chantell and Michael Sackett purchased a residential lot near a lake in Idaho and began preparing the lot for home construction. The EPA then ordered the Sacketts to halt construction and return the lot to its natural state, arguing that the lot fell under EPA jurisdiction under the Clean Water Act. The Sacketts challenged this claim, and the legal dispute eventually made it to the 9th Circuit Court of Appeals, and then rose all the way to the Supreme Court. During that same time period, a series of WOTUS rules were issued and replaced under three different Presidential Administrations.
On May 25, 2023, the U.S. Supreme Court released the long-awaited decision. The Court was unanimous in their ruling to reverse the 9th Circuit of Appeals decision, decided for the Sacketts and have remanded the case back to the lower courts for review. This decision has national implications for water quality, ag, development and the Waters of the U.S. (WOTUS) rule.
What is included in the ruling?
While the Court ruled unanimously in favor of the Sacketts, they were split 5-4 on further specifics in their decision. The majority opinion was authored by Justice Alito with concurrence from four other justices (Roberts, Thomas, Gorsuch and Barrett) largely adopting the Rapanos plurality decision, stating that wetlands that are separate from navigable waterways cannot be considered part of those waters, even if they are located nearby. This is exactly what Farm Bureau has advocated for, for years.
The Court’s majority decision states the following precedent:
- The previous “significant nexus” determination can no longer be used. Going forward, for a wetland to qualify as a WOTUS, that wetland must have a continuous surface water connection to a body of water that is itself a WOTUS. (For example, a continuously flowing body of water, river, lake or ocean. No longer can a water feature be considered a WOTUS just because it is close by or adjacent to a flowing feature.
- Wetlands must not only be adjacent, but must be adjoining, to a WOTUS by a continuous surface connection with that water to be considered part of the WOTUS.
What does this mean for farmers and property owners?
Keep in mind that the Sackett case began well before the current, flawed 2023 WOTUS rule. While it does not directly overturn the Biden Administration’s 2023 rule, it removes that rule’s ability to utilize the “significant nexus” test. The Biden administration will likely see major pressure to withdraw and replace its 2023 WOTUS rule. This pressure comes in addition to court decisions in roughly half of the country, including Virginia, that already block the rule.
In order to develop a new rule, the EPA and Army Corps will now have to work within the determinations of Sackett. This is a major win for the agriculture industry, as the next rule must be framed around continuous surface water connections, instead of the vagaries of the previous rule that allow for “significant nexus” that often required a team of engineers to identify.
Still, wetlands and features that do not meet the “continuous surface connection” test for a WOTUS determination may still be regulated under other federal laws, state laws, and Chesapeake Bay regulations here in Virginia. In is every property owner’s responsibility to understand the law as it pertains to development and soil disturbance.
For the time being, Virginia farmers and property owners can breathe a sigh of relief that the difficult WOTUS rule is unenforceable and clearer rules may be on the horizon. As the WOTUS issue continues in its second decade and third Presidential Administration only one this is for certain: this will not be the last time we see this issue litigated and we must remain vigilant to respond to future rulemaking.