By Clark Poppert, NAICC president
On May 25, 2023, the Supreme Court decided Sackett v. EPA—a case with significant implications for the scope of federal jurisdiction under the Clean Water Act (CWA).
Although the Court unanimously agreed the lower court had applied the wrong standard for determining when wetlands are considered waters of the U.S. (WOTUS) based on their adjacency to other jurisdictional waters, it split 5-4 on the appropriate test. Given CWA’s lack of a clear definition of WOTUS, the majority formally adopted an earlier approach taken by a four-justice plurality in the 2006 case Rapanos v. U.S.
Under the majority’s test, “waters” are limited to relatively permanent bodies of water connected to traditionally navigable waters and wetlands. They are “waters of the U.S.” in their own right because they have a continuous surface connection to other jurisdictional waters.
The Supreme Court’s opinion made it clear that the significant nexus test is unlawful. However, the government didn’t provide guidance on how to proceed. A revised rule was released in August.
Why It’s Important Now
I recently spoke at a meeting on issues NAICC has been working on throughout the summer.
Most knew of the pilot projects that EPA released on the Endangered Species Act and the Herbicide Strategy Framework. However, I was surprised that many weren’t aware of the details of WOTUS or the recent court decision.
A few attendees asked more about WOTUS and what the decision might mean for growers and consultants.
I’m not an attorney, but these conversations led to discussions on the importance of being fully informed on federal-level regulatory activities.
NAICC, along with other organizations, will continue to monitor the work of the EPA and the Army Corps of Engineers as they construct regulations consistent with the court’s decision to ensure the best possible outcome for our grower-clients.
