The Supreme Court’s Clean Water Act decision restricting the federal government’s jurisdiction over “adjacent” wetlands prompted warnings that millions of acres of wetlands could be at risk, but the ruling generated cheers from farm groups that have fought for decades to limit the interpretation of the 50-year-old law.
It also may be the death knell for what remained of Chevron deference, even before the court takes up that specific issue in a later case. The Chevron doctrine says when a law is ambiguous, courts should defer to federal agencies’ interpretation.
Travis Cushman, deputy general counsel at the American Farm Bureau Federation, said the decision in Sackett v. EPA was "the exact result we were looking for."
“It makes it much easier for farmers and folks in the field to walk out and know, just by looking at the property, whether or not something should be regulated as a water,” he said in an interview with Agri-Pulse.
Cushman said the way the opinion’s result has been reported – as a 5-4 decision – is misleading because all nine members of the court rejected the federal government’s “significant nexus” test, which was crafted by former Justice Anthony Kennedy in the 2006 Rapanos decision.
That test said wetlands could be regulated if they “either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity” of navigable waters.
EPA Administrator Michael Regan did not say how the agency would respond to the decision. EPA is facing court challenges that have already resulted in its latest rule, which relies on the significant nexus test, being temporarily blocked in 27 states.
EPA Administrator Michael Regan “We’re still combing through the implications,” Regan said. “There’s no doubt that we are very disappointed, but we’re going to take a closer look at what the ruling actually means. We’re going to continue to work as hard as we can to follow the law but also to protect all communities and provide safe, affordable drinking water for every community in this country. That is our goal."
One option would be for EPA to simply withdraw the rule and ask the courts now handling the litigation to allow EPA and the Army Corps of Engineers to come up with a new rule.