Forestry Report

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Jody Strickland, Chief Business Officer

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“significant nexus” test, but not all saw eye-to-eye on how narrow the scope of the CWA should be. In the 5-4 majority opinion regarding the broader issue of wetlands, the Court held that the CWA only extends to wetlands with a “continuous surface connection” to a larger body of water that makes “it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”

Many organizations and groups found the “significant nexus” test vague and confusing, creating regulatory uncertainty and making it hard to run their businesses.

“The significant nexus test has been completely unworkable for landowners and this ruling acknowledges the need for clear guidelines,” said Scott Jones, chief executive officer of the Forest Landowners Association. “We hope to see further clarification on the relative permanence test in the future to add more clarity for private forest landowners.”

Cause For Concern

Other groups say the ruling is cause for concern. “The Sackett decision undoes a half-century of progress generated by the Clean Water Act. More than 118 million acres of formerly protected wetlands now face an existential threat from polluters and developers,” said Sam Sankar, senior VP of programs at Earthjustice, a nonprofit public interest environmental law organization, in a statement from the group.

Conservative Justice Brett Kavanaugh agreed that federal regulators went too far in the case, but he issued an opinion disagreeing with the Court’s new “continuous surface connection” test, saying it “departs from the statutory text, from 45 years of consistent agency practice, and from this Court’s precedents.” He was joined by the Court’s three liberal justices.

“By narrowing the Act’s coverage of wetlands to only adjoining wetlands, the Court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States,” Kavanaugh wrote.

In The Weeds

The 1972 CWA prohibited the discharge of pollutants into navigable waters, which it defines as “waters of the United States, including the territorial seas.” Since then, the uncertain meaning of WOTUS has been an ongoing problem, with the George W. Bush administration first issuing guidance to limit the CWA’s reach in 2003. The rule has been rewritten with each subsequent administration.

The Biden iteration, which took effect on March 20, used standards from the 2006 Supreme Court case Rapanos v. U.S., in which a majority conclusion was not reached. By using both “significant nexus” and “relatively permanent” standards from that decision, the Biden rule broadened the definition of WOTUS, causing several coalitions of states and various industries to sue EPA. By the time the Sackett decision came down, the rule was enjoined in more than half the states.

A statement released by EPA following the decision said: “The Biden-Harris Administration has worked to establish a durable definition of ‘waters of the United States’ that safeguards our nation’s waters, strengthens economic opportunity, and protects people’s health while providing the clarity and certainty that 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.”