Environmental Protection Agency keeps fighting on Biden’s Waters of the U.S. rule

Despite a significant loss in the Supreme Court which will likely require the Environmental Protection Agency (EPA) to rewrite the Biden administration’s Waters of the U.S. (WOTUS) rule, the agency filed an appeal seeking review of a preliminary injunction against the rule in 24 states.

Appeal filed in
years-long battle

On May 26, the Supreme Court sided with Michael and Chantell Sackett in their ongoing wetlands battle with the EPA. 

In particular, the court ruled the agency has no legal basis to use the so-called significant-nexus test when making Clean Water Act determinations. The significant-nexus test is the backbone of the Biden administration’s rule, meaning the administration likely has no choice but to withdraw and rewrite the rule.

On the same day as the court’s ruling, the Biden administration asked for and received an extension to June 29 of a court deadline in the U.S. District Court for the District of North Dakota. 

This court issued a preliminary injunction, stopping the EPA from enforcing the rule in 24 states.

On June 12, EPA filed an appeal to the U.S. Court of Appeals for the Eighth Circuit in St. Louis asking for review of the preliminary injunction.

So far, the Biden administration has given no indication of its intentions with the WOTUS rule.

This injunction is in effect in Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia and Wyoming.

The Supreme Court ruled unanimously the significant-nexus test used by the EPA and the U.S. Army Corps of Engineers was illegal.

A turning point in
determining EPA’s reach

EPA Administrator Michael Regan issued a statement following the court’s ruling, saying in part, the decision “erodes longstanding clean water protections.” 

Regan added, “The Biden-Harris administration has worked to establish a durable definition of ‘WOTUS’ which safeguards our nation’s waters, strengthens economic opportunity and protects people’s health, while providing the clarity and certainty farmers, ranchers and landowners deserve.”

“These goals will continue to guide the agency forward as we carefully review the Supreme Court decision and consider next steps,” he continued.

The Sackett case is considered by many experts to be a turning point in determining the reach of the Clean Water Act (CWA).

Writing the majority opinion in the May 26 ruling, Justice Samuel Alito said the CWA’s reach was far narrower than EPA and the Corps of Engineers have interpreted for years.

“The EPA, however, offers only a passing attempt to square its interpretation with the text and its ‘significant-nexus’ theory is particularly implausible,” Alito wrote. 

He said the definition of WOTUS is more limited. 

“And, in any event, the CWA never mentions the ‘significant-nexus’ test, so the EPA has no statutory basis to impose it,” Alito stated.

The Sacketts have been battling the EPA since 2007 for the right to build on land the agency has deemed to be a wetland. Their property sits on a lakefront and they’ve argued there is no surface connection between the lake and their land.

Todd Neeley is a DTN staff reporter and Lincoln, Neb. native. This article was originally published in Progressive Farmer on June 12.