The Oklahoma Farm Bureau Legal Foundation recently joined 20 other state agricultural bureaus in filing an amicus curiae – or “friend of the court” – brief in support of the petitioner in the Sackett v. Environmental Protection Agency Consideration of a case by the Supreme Court of the United States.
For more than a decade, Sackett v EPA emphasizes federal jurisdiction over wetlands under the Clean Water Act of 1972. The case began with a dispute over a Sackett family lot in Idaho that was filled in and leveled for the construction of a house. Shortly after filling in the land, the Sackett family received a message from the EPA that the land was actually a wetland under CWA protection and needed to be restored to its original condition.
While the U.S. Supreme Court upheld the Sacketts’ right to challenge the EPA’s action in 2012, the means of determining whether a body of water is “United States water” remains unclear and controversial. .
“United States waters” – a term first used in the Clean Water Act of 1972 – has had many interpretations over the years. Perhaps one of the most recognizable cases is the 2006 case of Rapanos v. United Stateswhere Justice Anthony Kennedy first introduced the “significant connection” test in addition to the definition proposed by Justice Antonin Scalia in the Court’s Plurality Notice.
Hear – a collaboration between the Cornell Legal Information Institute, Justia and the Chicago-Kent College of Law – sums up Justice Scalia’s pluralistic view in Rapanos:
The plurality held that the definitional term “waters of the United States” can only refer to “relatively permanent, stagnant, or flowing bodies of water”, and not to “occasional”, “intermittent” or “flows”. ephemeral”. Moreover, a simple “hydrological link” is not sufficient to qualify a wetland as covered by the CWA; it must have a “continuous surface connection” with a “US water” that makes it “difficult to determine where ‘water’ ends and ‘wetland’ begins”.
However, according to Justice Kennedy in the concurring opinion of the case, “to constitute ‘navigable waters’ under the Act, a water or wetland must possess a ‘significant connection’ with waters which are or were in fact seaworthy or could reasonably be manufactured.”
An attempt was made to further clarify the definition of WOTUS in 2015 through the Clean Water Rule, but was repealed in 2019 and eventually replaced by the Navigable Waters Protection Rule in 2020.
In January 2022, SCOTUS agreed to rehear the case. In doing so, SCOTUS will decide the appropriate test to use to determine if the applicable wetlands are “United States waters”.
Main concern – Overbreadth of regulation
The OKFB and other state agricultural bureaus in the brief are concerned about the federal government’s increasing regulatory overreach in defining and regulating WOTUS since Rapanos in 2006. The group argued that the overregulation stems from “the lack of a clear and definitive test” for determining what constitutes WOTUS.
In the brief, the band said:
Relying on the ambiguous “significant connection” test of Justice Kennedy’s concurring opinion in Rapanos, federal agencies have asserted jurisdiction over isolated wetlands (like those at issue in this case), not to mention dry ditches and even tire ruts – features that no reasonable person would consider water of any kind. whatsoever, much less one “from the United States”. states.” … This intrusion by the federal government into large swathes of state lands and waters has resulted in adverse effects and hardship on friends members. Many, if not most, routine farming operations now require farmers and ranchers to first seek permission from federal bureaucrats, costing a lot of time and money.
The group claimed that the “significant connection” test gives agencies like the EPA “essentially unlimited regulatory authority.” They would rather see the regulation of intrastate waters contained within state and local governments rather than falling under federal jurisdiction.
This vague “significant connection” test leaves a lot of room for interpretation in deciding whether a water feature is indeed “of the United States.” The group cited several real-world locations and examples, including the Redfield Canyon Wash in Arizona, a desert landscape that only holds water during floods; tire ruts on dirt roads; and ditches and depressions in rural farmland – all of which the US Army Corps of Engineers has asserted jurisdiction over in the past.
They went on to say that under the current definition of WOTUS, the EPA and the Corps could theoretically assert jurisdiction over nearly the entire state of Arizona based on the state’s intermittent streams.
Impact on landowners
As it stands, the ambiguous definition of WOTUS places a huge burden on landowners, especially farmers and ranchers. In the brief, the band put it simply:
In other words, once a feature is declared WOTUS, landowners must obtain a federal permit to undertake essentially any activity in or around the feature, including not only land clearing and construction, but also basic farming activities like driving a tractor over the feature or applying fertilizer on and around it.
Overbroad regulation costs landowners both time and money. The group referred to the opinion of the plurality in Rapanosciting an average time commitment of 788 days and an average cost of over $270,000 to obtain an individual permit.
Throughout the brief, the group argued for state and local governments to retain jurisdiction over land and water use regulations, citing state and local governments’ extensive knowledge and familiarity with “the relatively smaller geographic scale of states and localities”.
Maintaining regulations in local governments also allows for more efficient processing times for making decisions and issuing permits, which is important especially for farmers and ranchers who often have a limited amount of time to complete. important tasks such as planting seeds and applying herbicides.
The group added that leaving regulations to local governments gives a greater voice to local residents “who are most directly affected by land use decisions”.
By presenting facts and referencing both past court cases and real life scenarios, the OKFB Legal Foundation and the other 20 state agricultural offices in the brief urged SCOTUS to establish once and for all “a standard for determining what constitutes ‘the waters of the United States.'”
Although farmers and ranchers in Oklahoma have yet to be impacted by the extreme federal government interference on wetlands like other Farm Bureau states in the brief, a clear decision from SCOTUS would ensure that Oklahomans would not experience it in the future.
- Achieving a clear, understandable and applicable WOTUS definition must remain a priority.
- We oppose the 2015 WOTUS rule.
- We support maintaining the Navigable Waters Protection Rule and not reverting to the 2015 WOTUS Regulations.
- We support the elimination of all mandatory government designations of wetlands.
- Privately owned wetlands must retain all private property rights and we strongly oppose unauthorized access to privately owned wetlands.