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Supreme Court Confirms, EPA Went Out of Bounds on Waters of the U.S.



Zippy Duvall


photo credit: Eric Kelsey, Used with Permission

It would be hard to overstate the importance of last week’s decision by the Supreme Court in Sackett v. EPA. Faced with yet another sweeping application of the term “waters of the U.S.” by EPA, the Supreme Court has set a clear and practical definition that respects the words and intent of Congress in the Clean Water Act. While there’s still some work to be done to incorporate the Court’s decision into clean water regulations, this is a massive win for farmers, ranchers, and property owners all across the country.

Farmers take water quality seriously: our livelihoods depend on it. That’s why Farm Bureau has been calling for clarity when it comes to WOTUS for decades. The 2015 and 2023 rules set vague boundaries that would allow the regulation of vast areas of land as “waters.” They expanded federal authority far beyond what Congress intended, and the Supreme Court has now unanimously rejected that overreach.

All nine Justices agreed that EPA’s so-called “significant nexus” test—the agency’s tool to assert more authority over private land—was an overreach. The Justices only disagreed (five to four) on which wetlands that are “adjacent” to navigable waters can be regulated. Let that sink in for a minute—EPA’s position was rejected by ALL nine Justices on the Court. This is not a political or partisan issue. It’s common sense, and yet it took years of advocacy to get here.

This victory is a powerful example of the strength of Farm Bureau when we work together with a united voice on behalf of all farmers and ranchers.

EPA’s subjective “test” gave the federal government the ability to regulate mostly dry features and wetland miles from the nearest “navigable” water, based on an indefinite mix of complex scientific factors. Farmers would need a team of lawyers and consultants to have any hope of determining whether their land was regulated “waters,” and many would need federal permits for basic farm work like moving dirt and building fences. Farm Bureau has fought this land grab for years with the agencies and in the courts. Finally, the highest court in the land has said it must stop.

This victory is a powerful example of the strength of Farm Bureau when we work together with a united voice on behalf of all farmers and ranchers. When the Sacketts’ case rose to the Supreme Court, AFBF organized a group of 14 national agricultural organizations and coordinated with 20 state Farm Bureau organizations to file a strategically focused set of friend-of-the-court briefs. We explained the impact of this issue on farming and emphasized the important role of state and local authorities in protecting land and water resources. There is no question that our advocacy made a difference. In fact, the state Farm Bureau brief was even cited by the Court. And the Court adopted the exact legal framework we argued for in our national ag brief.

So what’s next? Well, there is still work to be done. EPA’s latest 2023 WOTUS rule is still on the books. But this decision will send EPA back to the drawing board with clear directions and boundaries.

Farm Bureau is grateful to the Supreme Court for respecting common sense and private property rights. Now it’s time for the Biden administration to do the same. Farmers and ranchers are ready to move forward, and we’ll continue to work for clear rules that stay in bounds and let farmers farm with the careful stewardship we practice every day.