TOPEKA, Kan. (Firm to Farm) — For more than fifty years, farmers and ranchers operated under the shadow of a changing administrative sword. The Clean Water Act (CWA) of 1972, while noble in its intent to maintain the integrity of the nation’s waters, became an instrument of severe regulatory overreach.
By expanding the statutory phrase “Waters of the United States” (WOTUS) to encompass dry desert arroyos, ephemeral drainage ditches, and isolated pastures, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) transformed ordinary farming into high-stakes legal gambles.
The Supreme Court’s watershed decision in Sackett v. Environmental Protection Agency[1] fundamentally altered this trajectory. By decisively rejecting the amorphous “significant nexus” test and requiring a bright-line, continuous surface connection to relatively permanent waterbodies, the Court restored structural constitutionalism, property rights, and procedural sanity to the WOTUS issue.
Yet, three years later, a new battlefield has emerged. The administrative state, with holdovers from the previous administration, is not backing down quietly. Today, federal enforcement agencies are shifting their tactics from substantive environmental law to procedural cash-flow warfare, utilizing the staggering costs of federal litigation to force capitulation. For producers and their professional advisors – including agricultural attorneys and CPAs – understanding this new landscape is critical to safeguarding operational capital and private land values.
The Quagmire of the “Significant Nexus” Regime
Following the Supreme Court’s fractured 2006 decision in Rapanos v. United States[2], federal jurisdiction hinged on Justice Anthony Kennedy’s lone concurrence, which asserted federal authority over any wetland or seasonal channel possessing a “significant nexus” to traditional navigable waters. Because “significance” is an ecological abstraction rather than a precise legal standard, the executive branch enjoyed virtually boundless discretion. For farmers and ranchers, low-lying areas of a pasture, seasonal puddles, or ordinary agricultural drainage ditches could suddenly be classified as federal waters.
The economic roadblocks of this regime were ruinous. Obtaining a standard CWA §404 permit costs an applicant an average of over $270,000 and requires hundreds of days of bureaucratic maneuvering. For a family farm operating on thin margins, such costs were prohibitive. Worse, because ordinary land-use activities like tilling, fencing, or building stock ponds involve moving dirt (which federal agencies classified as the “discharge of a pollutant”) farmers faced civil penalties exceeding $40,000 per day, alongside potential criminal liability, without any clear method to predict whether their property fell under federal purview.
The Sackett Textualist Correction
Writing for the Court in May 2023, Justice Samuel Alito reanchored CWA jurisprudence in standard textualist and structural principles. The Court adopted the late Justice Antonin Scalia’s Rapanos plurality standard, holding that the CWA’s use of “waters” encompasses only:
“…those relatively permanent, standing or continuously flowing bodies of water ‘forming geographical features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’”
Crucially for the agricultural sector, the Court established a stringent, two-part test to determine whether a wetland can be regulated under federal law:
- The Adjacent Waterbody Test: The adjacent waterbody must qualify as a “water of the United States” in its own right (meaning it is a relatively permanent body of water connected to traditional interstate navigable waters).
- The Continuous Surface Connection Test: The wetland must possess a continuous surface connection to that waterbody, making it physically indistinguishable from the regulated water.
By redefining adjacency as a physical, visual reality rather than a speculative ecological relationship, the Court eliminated the “neighboring” or “hydrologically connected via groundwater” arguments that federal field agents routinely used to assert authority over private farmland.
Clean Water Act Boundaries Post-Sackett
- Federal Jurisdiction: Limited strictly to traditional navigable waters, relatively permanent tributaries, and wetlands possessing a continuous surface connection that renders them physically indistinguishable from those covered waters.
- State Jurisdiction: Retains full authority over ephemeral streams, isolated wetlands, local agricultural drainage ditches, and broader, localized land-use management under traditional state police powers.
Tangible Impacts on Everyday Farming and Ranching
The practical consequences of Sackett for American agriculture provide long-overdue stability across three core domains:
- Restoration of Fair Notice: Under Sackett, a farmer or rancher should be able to look at their property and determine jurisdiction using common sense. If a wetland does not visibly blend into a permanent river, lake, or stream, it is free from the threat of a surprise EPA compliance order. This satisfies the core due process requirement that citizens must have fair notice of what the law forbids.
- Safeguarding Land Management: Activities essential to crop and livestock production – such as cleaning out irrigation ditches, constructing terraces to prevent erosion, or altering a pasture’s slope – no longer carry the looming threat of a federal lawsuit. Sackett erects a firm barrier against federal intrusion into these regular operations.
- Protection of Land Value: Land is a farmer’s primary asset and the foundation of borrowing power. When an agency slaps a WOTUS designation on private land, its market value declines and its utility as loan collateral diminishes. By shrinking the federal footprint, Sackett has restored full property rights and market predictability to millions of acres of rural land nationwide.
The New Front Line: Procedural Warfare in the Lower Courts
Predictably, federal enforcement agencies and environmental litigants are resisting this reduction of their authority. Since the Sackett ruling, the battle has shifted into localized courtroom skirmishes over how Sackett’s terms are applied. Recent cases demonstrate that the administrative state is attempting to use procedural loopholes and aggressive litigation strategies to claw back the jurisdiction it lost.
United States v. Valentine: The Discovery Weapon
In United States v. Valentine,[3] the defendants (a forestry and logging operation) argued that the federal government’s CWA enforcement complaint was legally defective because it failed to explicitly allege that the wetlands at issue were “indistinguishable” from covered federal waters, or that a continuous surface water connection existed.
The trial court rejected the landowners’ argument, finding that “indistinguishability” is not a separate legal element that must be written into an initial complaint, but rather the natural factual outcome of a continuous surface connection. Because the court denied the defendants’ motion for judgment on the pleadings, the lawsuit was not dismissed; instead, the ruling allowed the government’s civil enforcement action to move forward into the discovery and evidentiary phases.
United States v. Andrews: Judicial Nullification
An even more direct challenge to Sackett is unfolding in United States v. Andrews[4], an enforcement action centering on a 72-acre family farm in Connecticut. The EPA claimed the landowner filled 13.3 acres of wetlands without a CWA §404 permit during earth-moving and ditching projects designed to improve his farm acreage.
The government argued that because the filled wetlands shared a “continuous surface flow path” with a perennial stream via seasonal runoff and drainage, federal jurisdiction was established. The landowner countered that his farm lacks a permanent, standing surface water connection and that the boundaries between his land and the stream are easily distinguishable. He maintained that the EPA overstepped its post-Sackett boundaries by using a mere temporary “surface flow path” to claim federal authority.
The appellate court affirmed an injunction against the landowner, ruling that regulatory jurisdiction was properly established by a “continuous surface flow path.” This position represents an act of judicial nullification. By substituting the Supreme Court’s clear mandate of physical indistinguishability with a vague “flow path,” the lower court has resurrected the “significant nexus” ghost under a different semantic guise.
The Proactive Defense
The ongoing litigation in Valentine and Andrews demonstrates that the true victory of Sackett – flipping the burden of proof back onto the federal government – is under active threat. Today, if a Corps field agent cannot visually demonstrate that a wetland physically abuts and flows into a permanently flowing stream or lake, they lack the legal authority to open an investigation. However, as long as lower courts allow the EPA to drag producers into budget-exhausting discovery phases, the process itself remains the punishment.
A farming operation’s defense must shift from substantive legal arguments to proactive, physical documentation. Attorneys should prepare for extensive, evidence-heavy phases early in any dispute. CPAs must evaluate the impact of potential litigation on balance sheets, lending collateral, and contingent liabilities, while managing the tax deductibility of defense costs. Landowners should work with their advisors to proactively document their property’s visual boundaries. Utilizing time-stamped photography, drone footage, and historical aerial mapping to prove the absolute absence of a continuous surface connection provides an indispensable insurance policy. Having this evidence ready can defeat an agency’s assertion of authority before it transforms into a ruinous, multi-year court battle.
Conclusion
Ultimately, Sackett v. EPA stands as a triumph for the rule of law, delivering a long-overdue, decisive blow against the overreach of an unelected administrative state. By flatly rejecting bureaucratic aggrandizement, the Supreme Court resoundingly vindicated the methodology of textualism, re-anchoring the word “waters” to its ordinary, permanent geographic meaning. Furthermore, the decision restored structural constitutional federalism, returning the regulatory baton over local land-use management back to state authorities. However, to preserve their property rights, farmers and ranchers must understand the procedural tactics of federal enforcement and take proactive steps to document the visual realities of their land.
FOOTNOTES:
[1] 598 U.S. 651 (2023).
[2] 547 U.S. 715, 721 (2006).
[3] 751 F. Supp. 3d 617 (E.D. N.C. 2024).
[4] No. 24-1479, 2025 U.S. App. LEXIS 6391 (2d Cir. Mar. 19, 2025), aff’g., 677 F. Supp. 3d 74 (D. Conn. 2023), pet. for cert. filed Nov. 20, 2025.
