RECENT U.S. SUPREME COURT DECISION ON CLEAN WATER ACT IS BIG WIN FOR AGRICULTURE, PROPERTY RIGHTS
Property owners across America scored a tremendous win as the result of a recent U.S. Supreme Court (SCOTUS) ruling regarding the Clean Water Act (CWA). The CWA regulates the discharges of pollutants into navigable waters of the United States and regulates water quality standards. On May 25, 2023, SCOTUS ruled in the sixteen-year-old Sackett vs. Environmental Protection Agency (EPA) case, favoring plaintiffs Michael and Chantell Sackett.
The Sacketts purchased some land near Priest Lake, Idaho, to build a family home. As the Sacketts began preparing the property for construction, the EPA claimed their land contained wetlands qualifying as navigable waters under federal jurisdiction according to the CWA, and the moving of soil would pollute those waters.
In reality, the Sackett property is simply located across the road from an irrigation ditch. Nevertheless, the EPA demanded the Sacketts restore their property to its original state, or be fined $40,000 per day until they complied with the federal agency’s egregious demands.
Unfortunately, this is only one example in a long list of EPA’s arbitrary, and often overtly malicious, abuse of power regarding the Clean Water Act over the years. The Sackett ruling is a major triumph for property rights and for our nation’s food security. This decision has effectively ended what Sackett Attorney, Charles Yates of the Pacific Legal Foundation, referred to as a “perennial regulatory ping pong.”
The interpretation of what qualifies as “navigable waters” has flip-flopped from one administration to the next depending largely on the party of the President and that party’s environmental policies. The differing definition of navigable waters stems mainly from varying opinions from a 2006 SCOTUS case: Rapanos vs. the United States.
Because of this, all too often property owners have been left in a state of stressful uncertainty about altering or developing their land, and if changes they make might result in severe criminal charges and exorbitant financial penalties.
Despite the utterly predictable outcry from environmental extremists about the ruling, the Clean Water Act is alive and well and continues to provide protections for one of our nation’s most precious resources. The Sackett decision has simply clarified and solidified the rules regarding federally managed “navigable waters.”
Justice Alito wrote:
“Thankfully, applying well-established navigability rules makes this a straightforward case. The “wetlands” on the Sacketts’ property are not “waters of the United States” for several independently sufficient reasons. First, for the reasons set out by the Court, the Sacketts’ wetlands are not “waters” because they lack a continuous surface connection with a traditional navigable water. See ante, at 27. Second, the non-navigable so-called “tributary” (really, a roadside ditch) across the street from the Sacketts’ property is not a water of the United States because it is not, has never been, and cannot reasonably be made a highway of interstate or foreign commerce. See SWANCC, 531 U. S., at 172.”
Yates called the ruling a “significant win for property rights and the separation of powers,” and the Supreme Court has set forth a “clear test” for determining what does, and does not, constitute navigable waters.
In Rapanos vs. the United States, Justice Scalia wrote in the plurality opinion that waters of the United States, commonly known as WOTUS, can only refer to relatively permanent, standing or flowing bodies of water, not occasional, intermittent, or ephemeral flows. Additionally, a simple hydrological connection is not enough to qualify a wetland as being covered by the CWA. It must have a continuous surface connection with a water of the United States that makes it “difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”
Justice Kennedy wrote a separate but concurring opinion that wetlands do not need to have a continuous surface connection to a continuously flowing body of water, but simply be adjacent to a tributary of navigable water and have a “significant nexus.” In the Sackett case, the EPA considered the nearby irrigation ditch to have a significant nexus with Priest Lake.
Since the Rapanos case, it has been the utilization of the significant nexus test that resulted in the heavy-handed government overreach and shameful harassment of landowners which, until now, have been draconian hallmarks of the Clean Water Act.
Even though the Sackett case revolved around a single-family residential project, the importance of the ruling for all landowners cannot be overstated. For our nation’s farmers and ranchers, it means they cannot be arbitrarily and heavily fined for standard, sound, well-established, agricultural practices. Plowing a field or building a pond on private property to collect water for livestock are both practices that the EPA has attacked in the name of the CWA.
In fact, the recent SCOTUS opinion addresses this very thing, stating: “… penal statutes could sweep broadly enough to render criminal a host of what might otherwise be considered ordinary activities…”
An article from the New Civil Liberties Alliance stated:
“The EPA is notorious for pushing the outer boundaries of jurisdiction under the Act, with the Supreme Court in. Rapanos v. United States, noting the “immense expansion” of federal regulation of land use that has occurred under the CWA in the last forty years “without any change in the governing statute.”
U.S. Congressman John Duarte, who was himself targeted by the EPA and Army Corps of Engineers in the name of the CWA stated:
“This decision strikes a delicate balance between environmental protection and property rights. It acknowledges the importance of environmental regulations while ensuring that agencies like the EPA are held accountable and operate within the law. It strengthens the idea that the government must work with farmers and small business, not against them, when enforcing regulations.”
Duarte Family Nursery faced millions of dollars in fines for simply plowing a wheat field, and the business was forced to spend millions on litigation. Such costs are completely untenable for the majority of farmers and ranchers and, until the Sackett ruling, the possibility of being forced out of business by unelected, green-agenda-following bureaucrats was all too real.
The Sackett ruling is also a tremendous win for American consumers, who trust in our safe, reliable, and sustainable agriculture systems to affordably feed their families.
Protect The Harvest applauds the Sackett decision as a huge step toward keeping America free and fed.
Read more about the WOTUS saga here.
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