The Supreme Court’s decision in Sackett v EPA, announced on May 25, 2023, was unanimous in that the EPA’s wetlands regulatory jurisdiction is limited to wetlands with a continuous surface connection to the waters of the United States. And the Supreme Court decided that the EPA’s wetlands regulatory jurisdiction is also limited.

In light of the Sackett v. EPA ruling, the National Cattlemen’s Beef Association is asking the U.S. District Court for the Southern District of Texas to strike down EPA’s Waters of the U.S. (WOTUS) rule.

“In Sackett v EPA, the Supreme Court unanimously ruled that EPA had overstepped its authority,” said NCBA Chief Counsel Mary Thomas Hart. She said only a full rewrite of WOTUS would comply with the Sackett decision.

NCBA asks the federal court “to strike the rule from the books.”

In the Sackett case, EPA asked the Supreme Court to “defer to its understanding: of the Clean Water Act, ” but the court declined, finding EPA’s “interpretation is inconsistent with the text and structure of the CWA.”

The Denver-based NCBA argues that major portions of the existing WOTUS rule are directly invalidated by the high court decision. They argue that because EPA is left with “fundamental flaws,” the entire rule should be vacated.

In a 37-page memorandum filed June 28, NCBA says the Sackett decision establishes that the WOTUS rule on the books is now “unlawful.”

In its summary of its argument, the NCBA moton says: “Now that Sackett has disapproved of many aspects of the Rule, it should be completely vacated. Sackett conclusively rejects the inclusion of all interstate waters regardless of navigability as WOTUS; instead, Sackett makes clear to be WOTUS, a waterbody must be a “relatively permanent body of water” connected to “traditional interstate navigable waters.” Sackett also expressly rejects the Rule’s significant nexus test used to define whether tributaries, impoundments of tributaries, wetlands, and intrastate features are WOTUS. As Sackett explained, the CWA does not contain a significant nexus test and therefore the Agencies have no authority to impose it. Sackett also squarely rejects the Rule’s interpretation of “adjacency” to define whether wetlands are WOTUS. Wetlands that are neighboring or near but not abutting jurisdictional waters cannot be WOTUS because they are not indistinguishable from those waters. Further, the Rule’s relatively permanent test fails to provide the clarity Sackett requires, instead requiring landowners to determine whether their property contains jurisdictional features based on vague factors applied at the Agencies’ broad discretion. Indeed, Sackett makes clear that the Agencies’ vision of federal jurisdiction under the CWA that underlies their staggeringly broad definition of WOTUS in the Rule is predicated on a basic misconception: Congress intended to preserve traditional state authority over land and water use, and that limiting principle must be read into the jurisdictional reach of WOTUS under the CWA. For these reasons, the Rule should be vacated in its entirety.”

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