The Supreme Court’s monumental ruling on the Clean Water Act likely means the Biden administration will have to define once again which wetlands are subject to federal regulation. This time, however, many wetlands are certain to wind up exempt.
In the case of Sackett vs. EPA, the court threw out the “significant nexus” test outlined by Justice Anthony Kennedy in the 2006 Rapanos decision. That test said wetlands could be regulated if they, “alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters understood as navigable in the traditional sense.” EPA had specifically asked the court to defer to its new rule’s definition of “adjacent wetlands,” which relies on the Kennedy test, but the court declined.
The result: “That rule’s not going to survive any further,” said environmental attorney Rafe Petersen of Holland and Knight. Whereas previous SCOTUS decisions such as Rapanos provided EPA with some flexibility to continue to regulate broad classes of wetlands ephemeral streams, “I don’t think (Sackett) gives any wiggle room,” Petersen said.
Farmer-lawmaker who battled over WOTUS welcomes decision
No one was happier to see the ruling than Rep. John Duarte, a nursery owner who once was prosecuted for filling vernal pools as part of plowing a field. The California Republican learned about the decision as he came off the House floor Thursday morning. He later told Agri-Pulse’s Steve Davies that EPA or the Corps “should put out field guidance letters to property owners throughout America that set aside any jurisdictional claims they've had over isolated wetlands based on the significance test.”
“The significant nexus test is gone,” Duarte said. “That means that prairie potholes, small depressions on properties, (and) vernal pools — common in California — are no longer jurisdictional under the Clean Water Act.”
Duarte expects Congress to stay out of the issue. “I don't see an appetite in Congress to award any additional authority here,” he said.
On the other side: Environmental groups and their congressional allies say the court’s 5-4 decision puts wetlands nationwide at risk. The opinion “undercuts the legal foundation of the new science-based WOTUS regulation, as it applies to wetlands,” Earthjustice said. “More than 118 million acres of formerly protected wetlands now face an existential threat from polluters and developers,” said Sam Sankar, the group’s senior vice president of programs.
Senior Democrat cautions on Prop 12 fix
While we’re at it on Supreme Court decisions, a senior California Democrat, Rep Jim Costa, is doubtful the Senate will go along with putting a provision in the next farm bill to override California’s Proposition 12, a ballot initiative that regulates animal housing for products sold in the state. The high court’s decision earlier this month to uphold Prop 12 is expected to lead to similar ballot initiatives in other states. House Ag Chairman Glenn “GT” Thompson, R-Pa., wants to use the farm bill to keep that from happening.
“It’s a nice gesture, but that’s not going to stay in the Senate,” Costa tells Agri-Pulse.
Keep in mind: Just getting such a provision through the House Ag Committee has been a challenge in the past. But Thompson says there’s a better chance of getting a provision in the farm bill now that the Supreme Court has acted. Thompson also notes that the two Republicans who fought over the issue last time are both not in Congress anymore — Steve King of Iowa and Jeff Denham of California.
“The Supreme Court put so much at risk in terms of interstate commerce and agriculture, so I think we’re in a good place to do something in agriculture,” Thompson said.
By the way: This week’s guest on Agri-Pulse Newsmakers, California Republican Rep. David Valadao, says he wants to see the next farm bill expand crop insurance options for specialty crops. The policies “that have already been implemented work very well,” said Valadao. He also wants to see some changes in dairy policy, he said.
This week’s Newsmakers will be available today at Agri-Pulse.com.
Blue Dogs getting even harder to find
The Blue Dog Coalition that was once a significant moderate factor in the House Democratic caucus is down to nine members, including Costa. That’s a drop from 19 in the last Congress. The coalition was formed with 23 members after the 1994 midterm elections and for a while exceeded 50 members until the group was routed in the 2010 election.
The coalition named its three-member leadership team this week: Jared Golden of Maine will serve as co-chair for administration. Mary Sattler Peltola of Alaska will be co-chair for policy and legislative strategy. House Ag Committee member Marie Gluesenkamp Perez of Washington will be co-chair for communications and outreach.
Drought hinders Panama Canal crossing
Vessels are finding it harder to use the Panama Canal after persistent drought in the country forced the Panama Canal Authority to lower the draft restriction. The draft limit for the Neopanamax locks is normally 50 feet, but that’s been cut to 44.5 feet, requiring container vessels to reduce loads, according to USDA’s Agricultural Marketing Service.
Some vessels are levying surcharges on container transport and some are even advising alternate shipping routes, says AMS
Why it’s important: A lot of U.S. ag exports are sent in containers to Asia through the Panama Canal because it’s quicker and cheaper than shipping them around Cape Horn or through the Suez Canal.
Japan, Mexico and China buoy US corn exports
U.S. corn exports jumped by 20% in the week of May 12-18 to about 1.5 million metric tons — a 38% increase from the prior week — thanks to shipments to Japan, Mexico and China, according to the latest trade data released by USDA’s Foreign Agricultural Service. The U.S. shipped 511,300 tons to Japan, 377,400 tons to China and 263,300 tons to Mexico during the seven-day period.
Meanwhile, net export sales of corn for the same week reached a new 2022-23 marketing year low. Mexican buyers purchased a substantial 216,100 tons, but China canceled orders for 331,600. Orders for 216,700 tons by “unknown destinations” were also canceled, according to FAS.
Mexican and Chinese customers were also mainly responsible for stronger U.S. wheat exports in the week of May 12-18. Overall, the U.S. shipped 386,300 tons during the week — a 78% increase from the previous week.
He said it. “Neither of those two are in Congress, so we’ll get it done this time.” — House Ag Chairman Glenn Thompson on why it should be easier to pass a Prop 12 provision now that Steve King and Jeff Denham are no longer in Congress. King was defeated in 2020, and Denham lost his seat in 2018.
Steve Davies, Bill Tomson and Noah Wicks contributed to this report.