View From The Cab

By David Tollefson, Columnist

Many of you readers have heard of the U.S. Supreme Court ruling on Thursday, May 25, 2023, involving Mike and Chantell Sackett of Idaho, who have fought for years with the federal government over whether land they own includes a federally protected wetland.

A property 300 feet from Priest Lake in rural Idaho is the site of a Clean Water Act  dispute between the Environmental Protection Agency (EPA) and the Sacketts.

An article on DTNAg on Friday, May 26, 2023 by Jerry Hagstrom and Chris Clayton, sheds light on the rather historic ruling, at least in the minds of many farmers around the country, as well as rural residents, as were the Sacketts.

Here it is, edited for length:

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 ‘water 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 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 the U.S. Army Corps of Engineers as they implement the court’s new Continuous Surface Connection 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.”

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-ND., 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 “Water 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 (farmer from Minnesota) 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 Connor 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 the estuary.”

Connor 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 resources, 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.”

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.”

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So while the Supreme Court has been in the news a lot lately, for a whole host of reasons, a lot of us farmers think they got this one right. But of course,  there will be challenges and appeals.

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Please contact David Tollefson with thoughts or comments on this or future columns at: adtollef@hcinet.net