Last week the Supreme Court of the United States (SCOTUS) ruled that wetlands are only considered Waters of the U.S. (WOTUS) and under the enforcement provision of the Clean Water Act (CWA) when it is “a relatively permeable body of water connected to traditional interstate navigable waters”—and 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 Supreme Court case in particular dealt with the Sackett family in Priest Lake, Idaho, who were told by the EPA and Army Corps of Engineers officials 16 years ago that their residential lot was on a protected wetland and hence they could not build a residence there. They were threatened with daily fines unless they applied for a federal permit. Instead, the Sacketts sued the government. A previous decision by the 9th U.S. Circuit Court of Appeals ruled in favor of the government, but last week’s decision reverses the lower court, and the Supreme Court unanimously ruled that “The wetlands on the Sacketts’ property are distinguishable from any possibly covered waters.” The court was split 5-4 on the court’s new “test,” which stated that only wetlands with a continuous surface connection to a body of water are covered by the law.
This decision has national implications for agriculture, development and the Biden administration’s recently promulgated WOTUS rule that includes small bodies of water, including those on private land and farms, if they had a “significant nexus” to navigable waterways as waters of the U.S. and under Clean Water Act regulations. That definition included tributaries, adjacent wetlands and streams, and even ephemeral waters, such as dry tributary beds, if they alone or in combination with similarly situated water significantly affected the chemical, physical or biological integrity of protected waterways.
NAAA was part of an effort to prevent the administration from developing its WOTUS definition until after the Supreme Court’s decision on the Sackett case. Legal experts believe the SCOTUS ruling, such as Justice Alito’s opinion language that “we hold that the CWA extends to only those ‘wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right,’ so that they are ‘indistinguishable’ from those waters,” will trim the jurisdiction of the EPA to regulate waters under the Clean Water Act to interstate and navigable waters and immediately adjacent wetlands. And that it will be a return to the traditional understanding of what Congress passed in the early 1970s. The Clean Water Act of 1972 gave the EPA the authority to regulate navigable waters in the United States. The decision will mitigate the area of waters that require NPDES pesticide general permits under the CWA—a duplicative and unnecessary regulation due to FIFRA rules and regulations already testing for the safety of pesticides to water and many other environmental criteria before being approved for use.
