Supreme Court Decision In WOTUS Case Major Win For Producers The Supreme Court this week issued its long-awaited opinion in the Sackett v. EPA case, the court’s most recent decision about which features are subject to federal Clean Water Act (CWA) jurisdiction. In its unanimous 9-0 holding, the court ruled in favor of the Sackett family, finding their wetlands do not fall under federal jurisdiction. NCBA and KLA strongly support this ruling.
The high court also soundly rejected the contentious “significant nexus” test. This test has been used to clarify that certain bodies of water, such as tributaries and wetlands, are subject to CWA based on their connection to and effect on larger downstream waters that Congress sought to protect when the act was implemented.
Instead of the significant nexus test, the majority of the court adopted the “continuous surface connection” test for determining CWA jurisdiction for wetlands. Under this standard, wetlands are jurisdictional only when they have a continuous surface connection to bodies that are actual waters of the U.S., so that there is no clear demarcation between “waters” and “wetlands.” The majority of justices also found CWA limits its jurisdiction to traditional navigable waters and “only those relatively permanent, standing or continuously flowing bodies of water” connected to traditional navigable waters. In practice, this likely means isolated wetlands and other ephemeral features are not subject to federal CWA permitting requirements. Additionally, in delivering the opinion, Justice Alito directly addressed arguments made by NCBA in its amicus brief to the court, including the unconstitutionality of attaching legal liability to CWA discharges without providing adequate notice of potential violation.
The Supreme Court’s decision puts the 2023 Biden WOTUS definition, which has a foundation in the “significant nexus” test, on shaky ground by significantly limiting executive overreach and restoring predictability to CWA. It also likely will allow states and other litigants, like NCBA, who previously obtained a preliminary injunction against the Biden administration’s WOTUS rule, to ask the court to immediately vacate the rule.
NCBA and KLA staff will continue to be actively involved in this issue. KLA appreciates the continued efforts of Sens. Jerry Moran and Roger Marshall and Reps. Tracey Mann, Jake LaTurner and Ron Estes to limit the government’s overreaching use of CWA.