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By Jim Bradbury and Courtney Cox Smith James D. Bradbury, PLLC
In the ongoing saga of defining and redefining the definition and regulation of Waters of the United States (WOTUS) under the Clean Water Act (CWA), the U.S. Supreme Court made waves once again when it unanimously held on May 25 in Sackett v. EPA that the “significant nexus” test is not the proper way to determine whether the CWA applies to a particular wetland.
In its place, the Court clarified that the correct test is whether the wetland has “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.” This decision will undoubtedly have significant impacts on WOTUS determinations, particularly under the final rule issued by the Biden Administration that embraced three legal standards for determining WOTUS, including the significant nexus test.
To recap, under the recent Biden WOTUS Rule, for water bodies that pose a question as to whether they are jurisdictional, the agencies look to three standards: the relatively permanent standard, the significant nexus standard and the material influence standard. The “relatively permanent standard” means “waters that are relatively permanent, standing or continuously flowing and waters with a continuous surface connection to such waters.” The “significant nexus standard” is defined as “waters that either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of traditional navigable waters, interstate waters, or the territorial seas.” A third new alternative legal standard is also in the final rule: the “material influence” standard. Under this standard, a smaller water body must have a “material influence” on a larger water body for the smaller water or wetland to be within the jurisdiction of the Clean Water Act.
Regulators could rely on any one of the three tests, meaning that a landowner who wants to avoid a finding of jurisdiction will need to disprove all three tests – a heavy burden to overcome.
Now the Supreme Court has overturned the significant nexus standard in the context of wetlands. Questions remain, however, as the Court did not define the correct test to be applied to other types of waterbodies such as tributaries.
What does the decision mean for the Biden Rule, and more importantly, what does it mean for agriculture? The full impacts are yet unknown for the Biden Rule, but at a minimum, the Biden Rule will have to be revisited to address the Court’s ruling in Sackett and its impact to the significant nexus analysis.
For agriculture, the ruling is a step in the right direction for farmers and ranchers as it narrows what wetlands can be subject to CWA jurisdiction. Moreover, the new “continuous surface connection” the Court provided in Sackett creates a more straightforward rule to understand and apply in determining whether a wetland is covered by the CWA. Namely, under the Court’s new standard, the question is whether the wetland physically touches another jurisdictional water.
Ultimately, the WOTUS saga is far from over. The standards continue to evolve, and when and how the rules may change again remains to be seen. What is certain is that agricultural operators must expect and keep a close eye on forthcoming changes to the applicable standards and rules, which will undoubtedly continue to shift in months and years to come.
To read the full opinion, access the Sackett v. EPA case here.