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EPA’s New WOTUS Proposal Needs Court Clarification

With oral arguments now complete in the Sackett versus EPA case before the Supreme Court, questions still remain related to whether or not the federal government has jurisdiction over certain parcels of land. Courtney Briggs is senior director of government affairs for the American Farm Bureau Federation. She says the confusion goes back to a previous Supreme Court Case that created two tests of jurisdiction.

“One, the relatively permanent test, and the second is the Significant Nexus Test. And the regulated community, including farmers and ranchers, find the use of the Significant Nexus test to be troubling because it is wildly vague and is used to expand the federal government’s reach over private property. So, the question before the High Court is, can you use a Significant Nexus Test and is that the appropriate test to assert jurisdiction. Like the Sacketts, our nation’s farmers and ranchers would argue that it is not the appropriate test, and we hope that justices will create a limiting principle that will provide clear guardrails on how far the federal government can reach.”

Briggs says there was a lot of debate during recent oral arguments about what Congress meant by “adjacent” in the Clean Water Act. She talks about the highlights of those oral arguments.

“This term has been debated since the statute’s inception. But I think one of the most notable takeaways is the fact that a number of justices from various sides of the political spectrum recognized the shortcomings of the Significant Nexus Test, and they really discussed the confusion for landowners in using that test.”

She says the EPA and the Army Corps of Engineers still have their proposed WOTUS rule that hinges on “significant nexus” under consideration. Briggs talks about where the discussion goes from here.

“That rule is currently being reviewed by the Office of Management and Budget and will likely be finalized by the end of this calendar year. But we remain confused as to why the agencies are insisting on moving forward with this rule. It makes more sense for them to wait until the Sackett decision is handed down. And the introduction of this new rule is only going to add confusion to an already very confusing situation.”

 

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