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Wetlands Seen Differently Today
Friday, May 26, 2023 9:55AM CDT

WASHINGTON (DTN) -- Like so many other political rifts in the U.S., the reaction to the U.S. Supreme Court decision on the Clean Water Act Thursday reflects another divide, though agricultural groups were elated in the ruling that curbs EPA's power to regulate wetlands.

There was even disagreement over whether the ruling was unanimous or a 5-4 split. Each Supreme Court justice unanimously agreed the plaintiffs in the case, Idaho residents Michael and Chantell Sackett, should have never faced an EPA wetland determination, but four justices split with a majority, arguing that Justice Samuel Alito's decision went too far in restricting how the federal government should regulate waters under the Clean Water Act.

Alito's ruling set a new standard that the Clean Water Act only extends to "'wetlands with a continuous surface connection to bodies that are 'waters of the United States' in their own right,'" Alito wrote.

Without a doubt, the ruling will force EPA and the Biden administration to once again draft new rules for defining waters of the U.S.

The National Cattlemen's Beef Association said it "strongly supports this ruling and is currently engaged in a litigation against the Environmental Protection Agency (EPA) regarding the Biden administration's WOTUS definition."

"Cattle producers across the country can breathe a sigh of relief today," said Todd Wilkinson, South Dakota cattle producer and NCBA president.

"Since EPA's adoption of the 'significant nexus' test, cattle producers have had to retain costly legal services to determine if water features on their property are federally jurisdictional," Wilkinson said.

"Today's Supreme Court opinion refocuses the Clean Water Act on protecting our water resource through regulatory clarity. We look forward to working with the EPA and U.S. Army Corps of Engineers as they implement the court's new Continuous Surface Connection standard."

NCBA, along with the American Farm Bureau Federation, had submitted an amicus brief in the Sackett case, encouraging elimination of the significant nexus test in exchange for the group called "a more practical standard."

President Joe Biden, responding to the ruling, said the Supreme Court decision, "will take our country backwards." Biden said wetlands will now be "at risk of pollution and destruction, jeopardizing the sources of clean water that millions of American families, farmers, and businesses rely on."

Biden's statement added that the decision "upends the legal framework that has protected America's waters for decades. It also defies the science that confirms the critical role of wetlands in safeguarding our nation's streams, rivers, and lakes from chemicals and pollutants that harm the health and wellbeing of children, families, and communities."

House Agriculture Committee Chairman Glenn "GT" Thompson, R-Pa., said the unanimous ruling "is a victory for America's farmers, ranchers, and landowners."

Thompson added, "The decision reaffirms the rights of property owners and provides long-needed clarity to rural America. In light of this decision, the Biden administration should withdraw its flawed final WOTUS rule. It is time to finally put an end to the regulatory whiplash and create a workable rule that promotes clean water while protecting the rights of rural Americans."

Sen. John Hoeven, R-N.D., the ranking member on the Senate Agriculture Appropriations Subcommittee, said, "This ruling is an important step toward reining in the Biden administration's repeated regulatory overreaches."

Hoeven also pointed to the Biden administration's "waters of the U.S. rule," which had relied upon the significant nexus test when it was drafted.

"The new WOTUS rule being pushed by the EPA would impose tremendous burdens on industries across our economy, including agriculture, energy and construction. That means even higher costs for consumers and stunted economic growth, limiting the creation of good-paying jobs."

AG GROUPS PRAISE NEW STANDARD

National Association of Wheat Growers CEO Chandler Goule said, "NAWG is pleased with the rule the Supreme Court issued today that rejected the confusing and expansive 'significant nexus' test that broadened the jurisdiction of the Clean Water Act."

"The Supreme Court ruling sided with a narrower definition of the Clean Water Act jurisdiction and limited the number of wetlands that would come under the regulation of the Clean Water Act," Goule said.

National Corn Growers Association President Tom Haag said, "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."

National Association of State Departments of Agriculture CEO Ted McKinney said the ruling "comes as welcome news to farmers, landowners and state departments of agriculture who sought clarity on what has been an over-litigated issue for decades."

McKinney added, "We take relief in this decision as the justices clearly state the 'significant nexus theory is particularly implausible' and the EPA has no statutory basis to impose the standard."

National Council of Farmer Cooperatives President and CEO Chuck Conner said, "The years of whiplash over what is or is not a water of the U.S. had brought us to a point where no one could tell their headwater from their estuary."

Conner added, "Water quality is a critical issue, but that doesn't mean every puddle on the farm needs to be subject to federal jurisdiction."

ENVIRONMENTAL GROUPS SEE WETLANDS AT RISK

The Environmental Working Group declared agricultural activities are one of the main sources of water pollution in U.S. rivers, streams, lakes, wetlands and groundwater. Each year, farm operators apply more than 12 million tons of nitrogen fertilizer and 8 million tons of phosphorus fertilizer to cropland, some of which runs off into water sources, EWG stated.

As a result of the ruling, "millions of acres of wetlands across the country will no longer be protected under the Clean Water Act," EWG stated.

EWG president and co-founder Ken Cook said, "The Supreme Court's ruling undermines the EPA's authority to prevent damage to wetlands and other drinking water sources from farm pollution and other industrial activities that can have serious implications for public health."

Trout Unlimited President and CEO Chris Wood said the group is disappointed with the Supreme Court's ruling as well.

"The court has severely eroded a 50-year national commitment to clean water, and misses the obvious point that wetlands are often connected to streams through subsurface flows," Wood said. "The ruling is a victory for muddy thinking, and directly compromises the stated purpose of the Clean Water Act--to make our rivers and streams more fishable, swimmable, and drinkable.

Wood added, "It is critical that the Biden administration continue advocating for a 'waters of the U.S.' definition that is rooted in science and ensures protection of the small streams and wetlands that provide clean water for people, communities, businesses, farmers, and fish and wildlife.

The Chesapeake Bay Foundation said the ruling "could damage the decades-long effort to restore the Chesapeake Bay and its waterways."

Chesapeake Bay Foundation Vice President of Litigation Jon Mueller said in a news release, "This dangerous decision risks damaging decades-long efforts by multiple states, federal agencies, and local jurisdictions to restore the Bay and its waterways.

"States without strong wetlands protections could now abandon their Chesapeake Clean Water Blueprint responsibility to reduce nitrogen, phosphorus, and sediment pollution in those areas because they are no longer covered by the Clean Water Act."

Mueller added, "Far from clarifying which waters are protected by the Clean Water Act, this ruling only sets us up for continued litigation and uncertainty while limiting our ability to protect and preserve the natural wonder we all treasure. The bay, its tributaries, and the 18 million people living in its watershed deserve better."

Also see, "Supreme Court Sides With Sacketts in Clean Water Act Case,"

https://www.dtnpf.com/…

Chris Clayton can be reached at Chris.Clayton@dtn.com

Follow him on Twitter @ChrisClaytonDTN

Jerry Hagstrom can be reached at jhagstrom@nationaljournal.com

Follow him on Twitter @hagstromreport


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