The ruling in Sackett v. Environmental Protection Agency will have a wide range of potential implications for irrigation professionals and the land and water they work with.

• LUKE REYNOLDS
• MAY 25, 2023

The Supreme Court ruled in favor of Michael and Chantell Sackett in the case of Sackett v. Environmental Protection Agency, No. 21-454, which answers some jurisdictional questions regarding the Waters of the United States and the reach of the Clean Water Act. 

The outcome, written for the majority by Justice Samuel Alito, rules that the Clean Water Act does not allow the Environmental Protection Agency, Washington D.C., to regulate discharges into some wetlands near bodies of water and limits the amount of regulation the EPA has in some waters of the United States.  

The 9-0 ruling supported the Sackett’s challenge of the EPA’s ability to bring an enforcement case against the Priest Lake, Idaho, landowners in 2007. The court also ruled 5-4 against the “significant nexus test” developed by former Justice Anthony Kennedy in the 2006 plurality opinion Rapanos v. United States, which held that only wetlands that have a continuous surface connection to a body of water are covered by the law. Instead, the Sackett ruling referred to a test put forward in the Rapanos plurality opinion written by Former Justice Antonin Scalia, in which the CWA only has jurisdiction on “relatively permanent, standing or continuously flowing bodies of water.” 

Alito was joined in the opinion by Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch and Amy Coney Barrett. 

The outcome is solidly a win for irrigation professionals, says Nathan Bowen, advocacy and public affairs vice president at the Irrigation Association. 

“This is a positive outcome for the industry,” Bowen says. “The court’s decision to narrow the scope of federal jurisdiction will help rein in federal overreach and will provide members of our industry needed clarity and confidence to do their work. We applaud the court in this decision.” 

Justice Brett Kavanaugh sided with the court’s three liberal justices in support of the significant nexus test ruling. He wrote that 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.” 

Members of the Sacketts’ legal team say the ruling is a beneficial outcome for property owners. 

“The court’s ruling returns the scope of the Clean Water Act to its original and proper limits,” said Damien Schiff, a senior attorney at Pacific Legal Foundation who argued the case. “Courts now have a clear measuring stick for fairness and consistency by federal regulators. Today’s ruling is a profound win for property rights and the constitutional separation of powers.” 

The ruling also has significant implications for the farming community, according to Zippy Duvall, president of the American Farm Bureau Federation. Duvall writes that there is still work to be done. 

“The justices respect private property rights. It’s now time for the Biden administration to do the same and rewrite the Waters of the United States Rule,” wrote Duvall. “Farmers and ranchers share the goal of protecting the resources they’re entrusted with, but they deserve a rule that provides clarity and doesn’t require a team of attorneys to properly care for their land.” 

Even with the ruling, more work will need to be done to reconcile the decision with the current WOTUS rule enacted by the Biden administration, which was recently the focus of a failed attempt to overturn in the House of Representatives. Rep. Glenn “GT” Thompson, R-Pennsylvania, chairman of the House Committee on Agriculture, called the decision a victory for farmers, ranchers and land owners, while providing clarity. 

“In light of this decision, the Biden administration should withdraw its flawed final WOTUS rule,” he said. “It is time to finally put an end to the regulatory whiplash and create a workable rule that promotes clean water while protecting the rights of rural Americans.” 

The decision erodes longstanding clean water protections, according to EPA Administrator Michael Regan, who said he was disappointed by the ruling in a statement. 

While the EPA’s ability to regulate water pollution and protect critical water resources under the CWA is still the law, the Sackett decision undermines those capabilities, said Senator Tom Carper, D-Delaware, in a statement. “The Supreme Court has turned back the clock on critical clean water protections, changed the decades-long understanding of the law and put America’s remaining wetlands in jeopardy,” he said.  

President Joe Biden said in a statement that the ruling is detrimental to the nation and jeopardizes the country’s natural resources.  

“My team will work with the Department of Justice and relevant agencies to carefully review this decision and use every legal authority we have to protect our nation’s waters for the people and communities that depend on them,” he said. “We will work with states, cities, and Tribal communities to pass and uphold critical protections for their residents. Our fight for clean water for all must go on, and it will.” 

From Pacific Legal- a GREAT win:

This morning—at around 7 a.m. where I am in California—the Supreme Court announced unanimous decisions in two Pacific Legal Foundation cases.

Both are stunning victories.

In Sackett v. EPA, which PLF senior attorney Damien Schiff argued on the first day of the term in October, the Court significantly narrowed the Environmental Protection Agency’s Clean Water Act authority. Because of today’s victory, property owners like Mike and Chantell Sackett will no longer be threatened with thousands of dollars in Clean Water Act fines and blocked from building a home on their land. Instead, the EPA will only be able to regulate legitimate wetlands that have “a continuous surface connection to bodies that are ‘waters of the United States.’”

I cannot overstate how big a win this is. The decision—authored by Justice Samuel Alito—clears up 50 years of confusion and puts a check on the EPA’s decades-long mission creep by restoring the scope of the Clean Water Act to what Congress intended.

Mere seconds after the Supreme Court announced its Sackett decision, the Court gave us another victory: a unanimous decision for PLF client Geraldine Tyler in Tyler v. Hennepin County, which PLF senior attorney Christina Martin argued on the last day of the term in April.

In Tyler, all nine Justices agreed with PLF that the government cannot take more than it is owed when settling tax debt. By seizing and selling 94-year-old Geraldine’s condo over her $15,000 tax debt, the government violated the Takings Clause of the Fifth Amendment.

“The taxpayer must render unto Caesar what is Caesar’s,” Chief Justice John Roberts wrote in the decision, “but no more.”

The Tyler decision is a vindication of fundamental property rights. It will change the lives of thousands of Americans across the country—many of them senior citizens and struggling families who would have been destroyed by the government’s theft of their home equity.

Today’s two victories mean that Pacific Legal Foundation has won three Supreme Court cases this term. (Wilkins v. United States was argued in November and decided in April.) It’s unprecedented in PLF—and maybe even public interest law—history.

The Supreme Court hears only about 60 cases every year. Winning even one Supreme Court case in a single year would be a remarkable feat for the best attorneys. I’m so proud of our team that brought and won these cases.

I’m also proud to have you with us, the supporters and allies who brought us to this moment. Some of you were with us when we first started working on the Sackett case in 2008. Some of you were with us in 2015 when we first started talking about home equity theft—something no one else in the country was talking about. You stuck with us. You pushed us forward. And you made these victories happen.

We’re celebrating our 50th anniversary this year—and as of today, we have won 17 of our 19 cases at the Supreme Court.

That’s a great record in advancing liberty. Thank you for getting us there.

Sincerely,

Steven D. Anderson
President and CEO

Toni Meacham: Wrangling Water Law in Washington

By Kris Polly 

Toni Meacham is a highly respected ag and water attorney in central Washington State. She is also an active, fifth-generation rancher. Her personal and family background as well as her legal training gives her and insider’s knowledge of ag and water law, making her a highly effective advocate for Washington agriculture. 

In this month’s Irrigation Leader, we also bring you the fascinating stories of our country’s small irrigation districts. Two of those districts are in Texas: Meredith Allen and Caroline Runge, the current and outgoing managers of Texas’s Menard County Water Control and Improvement District No. 1, are working to repair the district’s historic irrigation canal, built by the Spanish in 1756, and to revitalize irrigated agriculture in Menard County. Oscar Gonzalez of the Hidalgo County Water Control and Improvement District No. 19 is dealing with the encroachment of urban development and the complications caused by the construction of a wall on the U.S.-Mexico border. 

In Arizona, General Manager Rex Green of Yuma Irrigation District is working to ensure food safety, to raise funds for infrastructure improvements, and to mitigate the effects of drought in an area that provides 90 percent of the United States’ winter produce. 

Mark McConnell, the general manager of western Nebraska’s Keith–Lincoln County Irrigation District, is working to pay for infrastructure improvements, in part by running water for Nebraska’s natural resources districts through his district’s canals during the offseason for groundwater recharge. 

Karl Burns, president of Colorado’s Stewart Ditch and Reservoir Company, tells us about the company’s recent Bureau of Reclamation–funded project to pipe a portion of its historic ditch with pipe manufactured by Diamond Plastics. 

General Manager Brad Edgerton of Nebraska’s Frenchman-Cambridge Irrigation District tells us about the radio communication towers that his district is putting up to operate its Rubicon automated gate system. 

Finally, we speak with Dee Waldron, a farmer in Weber County, Utah, who has undertaken significant water efficiency projects on his property. 

Small irrigation districts represent something truly admirable about the United States: How local producers come together to cooperatively build, fund, and operate infrastructure projects that benefit all, and how skillful managers leverage limited funds and resources to maintain and improve their districts’ water infrastructure

Click here to view the full issue!

https://www.capitalpress.com/ag_sectors/dairy/a-second-chance-more-farms-file-for-bankruptcy-protection/article_b8de4a9e-9166-11ea-a1a8-db3b4132353d.html

One of my cousins told me that I am not getting enough of my original articles put out there on FB. I try (key word there is TRY) to write an article every month for the Ketch Pen, which is published for Cattlemen and Cattlewomen. The purpose of the article is to inform the WCA membership on issues that are new in the law, with an emphasis on water and ecology. In January I also hit on a few taxation matters. Here is my January article:

The annual WCA Convention was last week at Suncadia. As usual we had some great speakers at the Water and Ecology meeting. Here is a summary of what we learned.

1.  Madi Clark from Washington Policy Center discussed the Ag Center located in Kennewick, WA. WPC monitors how our elected officials vote on washingtonvotes.org. Madi spoke about Whats Upstream. This was a government funded hate campaign against Washington Ag. A few groups have been started to investigate the funding of the website and lobbying, including Save Family Farming. Whatsupstream.com proclaims to be about holding polluters accountable, but has targeted ag. It lists ag as a major contributor to water pollution. Intent is to further political agenda using $655,000 of taxpayer money. NW Fisheries Commission is one of the major players in this agenda. The purpose is to “educate” people on pollution, but it is believed that the real intent is to push buffers around all waterways. This thought process is stemming from believing that buffers increase water quality. There is no scientific basis for this thought. There is no scientific basis for this on the website. Historic pollution and natural causes are not accounted for on the website. Current research shows that the public has 76% trust in farmers and ag. There is a bill out there called the Regulatory Integrity Act that still needs to be voted on.
2. Brandon Spencer- Brandon owns a ranch in Adams County, WA with the John Wayne Trail bisecting the ranch. This is the old Milwaukee rail bed. The Milwaukee went through bankruptcy proceedings, meaning that this specific rail line was never rail banked. Washington obtained this land through the bankruptcy proceedings by forgiving debt. Why does this pertain? Washington States Park Department is currently planning to spend $100 million to develop this trail. Due to the topography, this could be a drop in the bucket towards development. Portions of this trail are still in use by other railroads. Portions of this trail are owned by private landowners. The State is required by statute to put a cross state trail in somewhere, but using this trail is not feasible with the hindrances they are up against. The State is currently $480 million behind on maintenance on all State Parks. There is currently a limited operational budget. There are limited trail users and there has not been a study to this day on how many users there are on the trail. And no study on the economic impacts this trail would have, if any. One of the major issues to this trail is the fact that portions of the trail were deeded to the railroad by “reverter” deed. This means that if the land is not used for a railroad for one year, the land reverts back to the original land owner, successors, or assigns. The State is ignoring these deeds and continuing to move forward with development. With no oversight over the trail, no funds, and no clear ownership, this seems to be a waste taxpayer dollars. 
3.  Scott Horngren from Western Resource Legal Center spoke on the program, inclusive of the intern WCA was able to receive earlier this year. The WRLC intern worked on an ESA paper comparing State and Federal law to use to help with reform attempts. WRLC also represents WCA in the Northwest Environmental Advocates v. EPA case filed in Federal Court. That case is currently in settlement negotiations. WRLC also helped WCA draft comments on Wildlife Damage Rules leading to a final rule that reflected some common sense. WRLC is currently working on a Clean Water Act/ESA case in Oregon that focuses on fish. This case claims that grazing in watersheds leads to increased stream temperatures, leading to fish mortality. The Forest Service has determined that there is no scientific basis for this allegation. WRLC further presented on CAFO and their impacts to Washington ag. Currently one of the biggest issues is who has the burden to prove a discharge? The EPA says ag has to prove lack of a discharge. Cattlemen say that EPA has to prove a discharge The CAFO rules are now tied in to WOTUS due to the the EPA trying to expand their jurisdiction. The Federal Courts have been holding EPA in check, but we must be proactive.
4. Toni Meacham- DOE Updates:

• Education- having speakers like Dr. Tate, Dr. Buckhouse, and Dr. Hudson have allowed people to understand what pollution is and what pollution is not. The RCW that controls this type of pollution is 90.48.080 and .120. I always tell people to actually read the RCW. Many people are getting these letters and instead of responding to DOE, they are contacting attorney’s, the Livestock Water Quality Group, WCA, or whomever. If the Conservation Districts are contacted, then DOE is told.
• Testing- many people have begun to test the water flowing through their property or have started test plots.
• Resistance- DOE tends to pick on the same people. Many of the people that received letters this time have received letters in the past and made changes. They don’t want to remain a target.
• The complaint system- DOE has an anonymous complaint system where anyone can turn in anyone else and the landowner has no right to find out who turned them in. The ag industry has asked for this system to change and DOE refuses. Many landowners are frustrated with this complaint system and refuse to respond anymore.

• Hirst- The Hirst decision came out of the WA Supreme Court and is a 73 page document that hinders the exempt well statute. The Hirst decision has taken Washington by surprise and has led to some Counties, Spokane and Whatcom, putting a moratorium on building and development permits. Currently we are hoping for a legislative fix to this Supreme Court decision. It is too early to tell what is going to happen, so the best thing we can do is to talk about how this decision impacts us as landowners and keep the discussion going. 

By Chad Sokol

chadso@spokesman.com

(509) 459-5047

Spokane County has adopted an emergency ordinance that officials say will prevent a moratorium on building permits.

The action is in response to the controversial water rights decision made by the state’s highest court.

“This is an important step to ensuring Spokane County follows the law, as interpreted by the Washington Supreme Court, while also protecting property rights of our citizens,” Commissioner Al French said in a news release Tuesday.

The Hirst decision, which took effect Oct. 27, stipulates that new developments can’t diminish water supplies to senior right-holders, or cause stream flows to drop below environmental targets set by the state. It primarily affects rural property owners who rely on wells rather than public water utilities.

Proponents say the decision protects fish and ensures that new homes will have an adequate water supply. A 2013 investigation by The Spokesman-Review found that dozens, perhaps hundreds, of people in rural parts of the county live without enough water for basic needs, much less the luxury of a green lawn. Some residents paid tens of thousands of dollars to tap into public water lines.

Critics, meanwhile, call the decision a major obstacle to obtaining building permits, as permit-seekers must prove there’s enough water in the ground to support a new development.

The county ordinance may reduce that burden of proof. In most of the county, the ordinance says, a new well can’t be drilled within 500 feet of any existing one. County officials believe that distance satisfies the requirements of the Hirst ruling.

It will remain difficult to obtain a water permit on the Little Spokane River watershed, which encompasses the northern part of the county and has a state rule setting minimum stream flows.

Courts generally treat such rules as senior water rights: Rivers are entitled to a given amount of water, and that right can’t be infringed upon by a new well in the area.

County spokesman Jared Webley said the ordinance “confirms that there’s not much we can do with an instream flow rule.”

Officials plan to hold a public hearing, to consider making the ordinance permanent, within 60 days.

Prospective builders rushed to submit permit applications before the ruling took effect. From Oct. 20 through Oct. 26, the county received 453 applications – about nine times the usual number, officials said.

The Supreme Court based its decision on Washington’s Growth Management Act, a 1990 law that has drawn numerous lawsuits, including four in Spokane County that resulted in a sweeping settlement in June.

State lawmakers said they hope to amend the law to ease any development restrictions caused by the ruling. But it’s quickly becoming a partisan issue, with “property rights” as a central talking point.

Republicans have said the decision infringes on property rights because it stalls rural development unless there’s a permitted source of water. The decision effectively eliminates the category of permit-exempt wells, which was created to avoid processing costs for small withdrawals of water.

“The policy fix would be pretty straightforward,” said Sen. Michael Baumgartner, R-Spokane. “You would simply amend the (Growth Management Act) to allow permit-exempt wells.”

But diminishing a neighbor’s water supply also infringes on property rights, said Rep. Joe Fitzgibbon, a Burien Democrat and chairman of the House Environment Committee.

Fitzgibbon said permit-exempt wells and “undeterred development” can put a strain on water supplies.

“Mike Baumgartner can make all the bills he wants, but he’s not going to make more water,” he said.

A better solution is water-banking, in which local governments buy and sell water rights, Fitzgibbon said. “I think the Legislature could build a framework and some certainty for water-banking, building on what Kittitas County has done.”

Spokane County officials have been working to create a water-banking program for several years.