The U.S. Supreme Court recently handed a huge win to landowners, including farmers, in a case involving the U.S. Environmental Protection Agency’s jurisdiction over Waters of the United States, often referred to as WOTUS. The decision likely means the EPA and Army Corps of Engineers will have to re-examine their rule that went into effect in March, in which they “maintain that the significant-nexus test has been and remains sufficient to establish jurisdiction over ‘adjacent’ wetlands,” Justice Samuel Alito said, writing for the majority.
The National Corn Growers Association (NCGA) and many other ag groups applauded the decision.
“This sensible ruling preserves protections for our nation’s valuable water resources while providing clarity to farmers and others about the process of determining federal jurisdiction over wetlands,” said NCGA President Tom Haag. “This is a great day for corn growers.”
In the decision, the court narrowed the scope of the Clean Water Act’s jurisdiction by clearly rejecting the vague "significant nexus test," upending the Biden administration’s overreaching WOTUS rule.
A 5-4 majority on the court issued an opinion, written by Justice Samuel Alito, that significantly narrowed the definition of adjacent wetlands, saying that to be adjacent, and therefore a WOTUS, the wetland must have a continuous surface connection to a relatively permanent body of water connected to a traditional navigable water. The four-justice minority disagreed in an opinion, written by Justice Brett Kavanaugh, saying that a continuous surface connection test is too narrow, and overturns decades of precedent followed by both Republican and Democratic administrations.
NCGA, which has long said that EPA’s broad definition of WOTUS creates pervasive uncertainty and confusion for the agricultural community and farmers trying to manage land they own and operate, has spoken out forcefully on the issue and joined other agricultural groups in filing an amicus brief as the Supreme Court considered the case.
EPA is now expected to issue a revised WOTUS rule, since its current rule relies heavily on the significant nexus test.
EDITOR’S TAKE:
We have reported numerous times on WOTUS and followed the ups and downs of EPA’s attempts to regulate based on the Clean Water Act. Needless to say, farmers and ranchers were caught in a constant roller-coaster of proposed regulations that left a sense of uncertainty and frustration in its wake. Now, hopefully once and for all, the U.S. Supreme Court has made it much clearer what the definition of WOTUS really is and pulled back EPA’s most recent attempt to overreach their jurisdiction. Going forward, farmers, ranchers, developers, highway builders and others wishing to utilize land not connected to a permanent body of water should be able to do just that without the threat of EPA slapping them with huge fines or attempting to negotiate huge wetlands restoration swaps to obtain a permit. This is long overdue and is a game changer for agriculture!
