NCBA Seeks Third-Way Test for Waters of the U.S.


There may be a third way to resolve the long-running dispute over what test to use to decide EPA jurisdiction over wetlands.

National Cattlemen’s Chief Counsel Mary-Thomas Hart says after Supreme Court arguments in the “Waters of the U.S.” case Sackett v. EPA, the High Court seems to want a new wetlands test. Hart; “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?”

The Sacketts of Idaho argued for a simple surface-test to visibly determine a direct connection between land and a regulated water, while the government sought an adjacency and subsurface flow test.

Hart tells NCBA’s Beltway Beef podcast, her group offered a third way in its friend of the court brief. Hart; “The existence of physical indicators and some flow metric, in order to determine jurisdiction under the Clean Water Act. So, I think that, after oral arguments, that is a test that the court could take very seriously.”

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

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

The Biden EPA is expected to move back toward the original Obama WOTUS rule after the Trump EPA, pressed by farm and development groups, simplified the process.