April 7, 2022
UEP has joined with 12 other agricultural organizations in a brief to the Supreme Court in the Sackett case involving what are Waters of the US (WOTUS) under the Clean Water Act (CWA). That brief is being drafted now for submittal to the Court later this month. The Court is expected to hear oral arguments this fall, with a decision not expected until the end of this year or later.
The Sackett family’s petition asked the Court to revisit its Rapanos decision and determine whether Justice Scalia’s “relatively permanent” test, which states that features should have a continuous and relatively permanent connection to a navigable water, should be used exclusively to define waters under federal jurisdiction. Observers believe this Court is willing to do so, and in the process craft an opinion that would prevent EPA and the Army Corps of Engineers from evading the ruling by expansively interpreting the Court’s decisions to maintain the agencies’ desired breadth and scope of the land that is subject to federal jurisdiction. There are many examples of how the agency has done this, most recently in the WOTUS rule it proposed this past December.
UEP has asked the agencies to delay any further WOTUS rulemaking until after the Court has provided them with guidance; so far, there is no indication that the agencies are slowing down.
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