NCBA Files Supreme Court Brief Ahead of WOTUS Arguments Later This Year

The National Cattlemen’s Beef Association recently offered a brief to the Supreme Court regarding the Sackett vs. EPA case that will get argued later this year. Mary-Thomas Hart is the environmental counsel for the NCBA, and she talks about the amicus brief.

“NCBA filed an amicus brief in support of the Sacketts, arguing for a clear and limited definition of WOTUS. In addition to the brief admitted by NCBA, there was also a brief submitted by other agricultural organizations and some individual farm owners who submitted briefs in support of the Sacketts,” Hart said. “I think that we are sending a clear message to the Supreme Court that the agriculture industry is certainly impacted by the definition of WOTUS and needs a clear definition and needs this issue to be settled once and for all.”

The decision on Sackett vs. EPA will give a lot of direction on how much government control may be in the cards for the Waters of the U.S. “I think there are two things we would love to see in a ruling from this Supreme Court,” Hart said. “This case considers how federal courts across the country and administrative agencies should interpret the Rapanos decision from back in the early 2000s. In that case, we got two competing tests for whether something is a federally jurisdictional water feature.”

The two tests were expansive government control versus a limited government approach. “The test from Justice Kennedy is called a significant nexus test, and that’s a pretty vague concept and relies on a lot of case-by-case determination. The other test from the Rapanos case was called the relative permanence test, and that was written by the late Justice Scalia, and that is what it sounds like. If water flows with relative permanence and has a significant surface connection to downstream waters, then it’s federally jurisdictional. Only then is it federally jurisdictional. We’ve seen courts across the country struggle with which test the Supreme Court wants them to use to interpret it, and we’ve seen that at EPA as well.”

In the brief, NCBA took a unique position in what they’d like to see the court decide.

“We have argued to the Supreme Court that both tests should be satisfied in order for a feature to be jurisdictional. So, not only should it have relatively permanent flow and sufficient surface connection to downstream waters, but it should also have a significant Nexus to downstream water quality, and I think we can measure that by the presence of visual indicators. The features that are federally jurisdictional are going to be the features that most significantly contribute to downstream water quality. In our brief to the court, we made sure to note that determining that a feature isn’t federally jurisdictional doesn’t necessarily mean that it is not going to be regulated. It just means that that feature is left up to state and local management.”

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