Whether or not you believe the ruling is hooey, the U.S. Supreme Court finding in Sackett v. Environmental Protection Agency fundamentally changed how protected wetlands are defined under Waters of the United States in the Clean Waters Act.

The court replaced the controversial and heavily debated significant nexus test, established by Justice Anthony Kennedy in Rapanos v. United States, in favor of what should be a relatively straightforward analysis to determine if a wetland falls under the law: Is the water in question adjacent to a WOTUS, and, if so, is there a continuous surface connection with that WOTUS, “making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”

Writing for the court in Sackett, Justice Samuel Alito writes, “In sum, we hold that the CWA extends to only those ‘wetlands with a continuous surface connection to bodies that are “waters of the United States” in their own right,’ so that they are ‘indistinguishable’ from those waters.”

Let’s see if I’ve got this. Only wetlands that have a continuous and indistinguishable surface connection to a larger regulated body of water may be regulated. There doesn’t appear to be a whole lot of room for debate.

That is, of course, unless you are the EPA.

Iowa landowner Dan Ward wants to build a 9-acre pond on his 420-acre farm that would cross a 3-to-5-foot unnamed mostly dry ditch running across a majority of his property. Ward says, “There’s no water in it unless it rains the same day. Come after the rain and all you’ll find is some isolated puddles.”

The ditch connects off Ward’s property first to Caleb Creek, followed by Weldon River that dumps into Thompson River and then empties into the Grand River and finally flows to the Missouri River. The nearest navigable water, the Grand River, is more than 100 miles away from Ward’s land.

The day EPA inspected Ward’s property in April 2023 — a month before the Supreme Court Sackett ruling — it found what the agency says was a stream of water from a recent rain.

The finding was enough for EPA to claim jurisdiction under the Clean Water Act, while acknowledging the Sackett outcome might alter its view.

It did not. Under the amended WOTUS, EPA deemed Ward’s mostly dry ditch essentially as a relatively permanent, standing or continuously flowing body of water. Ward says EPA is requiring a needs assessment, an archaeology study, a wildlife habitat study, and a plan to build or restore another stream of equal size to replace the ditch he would dig up for the pond.

This past February, Ward appealed the EPA’s tortured logic:

“First, at its core, Sackett’s definition is one of ‘common sense and common usage.’ Rapanos, 547 U.S. at 732 n.5 (plurality). The relevant inquiry is whether a reasonable person would — taking into account visual observation of the relatively permanent presence of standing or continuously flowing water — describe the feature in question as a ‘stream, ocean, river, or lake…’ No reasonable person would describe the narrow and ordinarily dry depression on Appellants’ land using such terminology.”

Ward’s pending appeal also argues inspectors did not definitively find “the ordinary presence of water,” and arbitrarily characterized the ditch as a “seasonal river” based on the unquantified flow of water on a single day.

Ward’s case is not a one off. There is growing debate over what constitutes the relatively permanent presence of water. Just how permanent is relatively permanent? EPA is in the process of sorting that out with what it calls a Regional Streamflow Duration Assessment Methods.

The EPA says, “SDAMs are rapid field assessment methods that use hydrological, geomorphological, and/or biological indicators, observable in a single site visit, to classify streamflow duration as perennial, intermittent, or ephemeral at the reach scale.”

But the truth is sometimes plain common sense should win out. Is it crystal clear the WOTUS Grand River is in fact indistinguishable from a mostly dry ditch located over a hundred miles away? Given the evidence provided to the Army Corps of Engineers by Ward — no. EPA claiming jurisdiction over the ditch on Ward’s land is an overreach. 

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