Supreme Court decision on ‘Sackett’ goes industry’s way

In a brief to the Supreme Court, the National Stone, Sand & Gravel Association and the American Road & Transportation Builders Association critiqued the “significant nexus” test and noted that it has “no inherent limiting principles” and empowers federal agencies to assert federal jurisdiction “well beyond the limits set by Congress.” Photo: P&Q Staff

The Supreme Court ruled against the U.S. Environmental Protection Agency (EPA) in the long-awaited decision on Sackett v EPA, striking down the agency’s effort to expand its authority under the Clean Water Act.

The National Stone, Sand & Gravel Association characterized the decision as a win for the aggregate industry, noting in a joint release with the American Road & Transportation Builders Association (ARTBA) that a rewrite of the Waters of the United States (WOTUS) rule could be next.

“Today’s opinion in Sackett v EPA is a victory for our industry and is a major step towards a more reasonable definition of WOTUS, which our members have struggled with for years and was exacerbated by the premature and confusing Biden administration rule,” says Michael Johnson, president and CEO of the National Stone, Sand & Gravel Association (NSSGA).

According to NSSGA and ARTBA, at issue in Sackett v. EPA was whether EPA could require a permit for any area with a “significant nexus” to a navigable water body, such as a river, lake or stream. The associations say EPA never defined “significant nexus,” causing confusion across the industry.

Johnson

“With the end of significant nexus, we hope that the agencies heed this decision and work for a truly durable rule,” Johnson says. “A clearer WOTUS definition is necessary for our industry to provide the materials needed to build and modernize our country’s infrastructure in an environmentally friendly manner.”

Dave Bauer, president and CEO of ARTBA, seconded Johnson’s sentiment.

“With Sackett as a guide, we urge the EPA to pursue common-sense strategies that complement our nation’s infrastructure and environmental goals,” Bauer says.

In a brief to the Supreme Court, NSSGA and ARTBA critiqued the “significant nexus” test and noted that it has “no inherent limiting principles” and empowers federal agencies to assert federal jurisdiction “well beyond the limits set by Congress.”

The associations also maintained that defining WOTUS in such an expansive way improperly creates permit obligations for features such as roadside ditches, which serve the necessary safety function of collecting water during and after rain events. This type of overregulation serves only to delay critical infrastructure improvements and increases costs without providing any environmental benefits, the groups say.

EPA reaction

Regan

EPA administrator Michael Regan issued a written statement in response to the Supreme Court’s decision on Sackett v EPA, sharing his disappointment in the outcome.

“The Biden-Harris administration has worked to establish a durable definition of ‘waters of the United States’ that safeguards our nation’s waters, strengthens economic opportunity and protects people’s health while providing the clarity and certainty that farmers, ranchers and landowners deserve,” Regan says. “These goals will continue to guide the agency forward as we carefully review the Supreme Court decision and consider next steps.”