NCBA is pushing for a third-way test for WOTUS

The Association says the High Court seems to want a new wetlands test.

While farmers wait for the nation’s highest court to rule on Sackett vs. EPA, the NCBA says there might be another way to resolve the long-running dispute over Waters of the U.S.

The Chief Counsel for the National Cattlemen’s Beef Association says after Supreme Court arguments in Sackett vs. EPA, the High Court seems to want a new wetlands test.

“Is there something else that we should be looking for? Is there some middle ground that is going to adequately protect the nation’s waters, while also providing landowners the certainty that they need?” said Mary-Thomas Hart.

The Sacketts of Idaho argued for a simple surface test to visibly determine a direct connection between land and a regulated waterway. The government sought an adjacency and subsurface flow test. In the NCBA’s Beltway Beef Podcast, Mary-Thomas Hart says there is a third way.

“The existence of physical indicators and some flow metric in order to determine jurisdiction under the Clean Water Act. I think that after oral arguments, this is a test that the court could take very seriously.”

A split court in 2006 failed to decide on a proper test, but Hart sees a conflict if the EPA finalizes its new test this year as planned.

“Then, a Supreme Court opinion comes down that will require the EPA and Army Corp to go back, one again, and rewrite or rework this definition of WOTUS.”

There is no timetable for when the Supreme Court will rule on Sackett vs. EPA.

The definition of Navigable Waters was expanded under the Obama Administration, and Biden’s EPA is expected to move back toward that, after the Trump Administration reversed it.