Dueling WOTUS - As Rule is Created, Court Case is Heard

Haylie Shipp

As the Environmental Protection Agency pushes forward on its new Waters of the U.S. Rule, the Supreme Court is expected to make a decision that will have significant impacts. Oral arguments are now complete in the Sackett v. EPA case with questions abounding about governmental jurisdiction on 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.”

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

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. 
We remain confused as to why the agencies are insisting on moving forward with this rule.”

Courtney Briggs, senior director of government affairs for the American Farm Bureau Federation.