As we have for the past five years in a row, Shannon Ferrell and I recently authored an article for Southwest Farm Press providing an update on the current status of the meaning of “waters of the United States.  To hear our thoughts on where we are now, click here.  Jim Bradbury and I discussed this exact topic on our most recent Ag Law in the Field Podcast episode, which you can find here.

Photo by David Lang on Unsplash

Also, since our article was written, the United States Supreme Court has granted a Petition for Certiorari in Sackett v. Environmental Protection Agency.  The case involves an Idaho couple who want to build a home on land they own near Priest Lake.  The EPA, however, says that land is a “water of the United States” and, therefore, they may not build until they obtain a Clean Water Act permit.  The question before the Court will be, “Did the U.S. Court of Appeals for the 9th Circuit set forth the proper test for determining whether wetlands are “waters of the United States” under the Clean Water Act?”  The U.S. Court of Appeals for the Ninth Circuit held that it was Justice Kennedy’s “significant nexus” test from Rapanos that governed this analysis.  The Sacketts argue it should be Justice Scalia’s “continuous surface connection to a relatively permanent, standing or flowing body of water” test that applies.

With whom will the Supreme Court, which now looks very different than it did when Rapanos was decided in 2006, agree?  How will this pending case and ultimate decision impact the current Biden EPA rulemaking process?  Time will tell…