Montana ag organizations react to U.S. Supreme Court wetlands ruling

Montana Stockgrowers Association
Posted at 5:52 PM, May 26, 2023

HELENA — On Thursday, the U.S. Supreme Court issued a ruling that narrowed where the federal government can use its authority under the Clean Water Act. It’s a decision that drew support from several Montana agriculture organizations.

Groups like the Montana Stockgrowers Association and Montana Farm Bureau Federation say their members are concerned about federal water rules that they believe are unclear and too restrictive in how they use their land. They hailed the court’s decision as a step in the right direction.

“This is the fourth time water issues have been heard in front of the Supreme Court, and this was a very significant decision by the Supreme Court,” said Raylee Honeycutt, executive vice president of the Stockgrowers Association.

The case, Sackett v. EPA, dealt with a couple who planned to build a house on their property near Priest Lake, Idaho. When they backfilled the lot with dirt, the Environmental Protection Agency ordered them to undo the work because the property contained wetlands that qualified as “waters of the United States.” Under the Clean Water Act, the federal government has the authority to address pollution in waters of the U.S.

Supreme Court justices ruled unanimously that the Sacketts’ land shouldn’t be considered waters of the U.S., but they disagreed on how to define the term. The majority opinion, authored by Justice Samuel Alito, held that the Clean Water Act should only apply to wetlands if they have a direct “continuous surface connection” with other bodies of water that fall under the act. A minority opinion by Justice Brett Kavanaugh agreed with the majority’s conclusion, but disagreed with their new test, saying it meant many long-regulated wetlands wouldn’t be covered by the act – and that it could have “significant repercussions for water quality and flood control.”

Organizations like the Stockgrowers and the Farm Bureau have expressed concerns about a more expansive definition of waters of the U.S., saying it could put their members under significantly more regulation.

“That can be found on almost any farm or ranch in Montana – from a low-lying mud puddle to a ditch to just areas where water doesn't run all the time but only in certain times and doesn't reach navigable waters,” said Scott Kulbeck, executive vice president of the MFBF. “So you could find an instance where a farmer or rancher could be in a violation of the waters in the United States rule anywhere that you go in Montana – and that's part of the problem.”

“The Clean Water Act has been in place for over 50 years, and our ranching operations are multigenerational, so we've had members of our ranch communities having to change how they plan for their future through multiple generations differently, because this rule and jurisdiction continues to change,” Honeycutt said.

President Joe Biden released a statement, calling the court’s decision “disappointing,” and saying it put wetlands and the waters adjacent to them at greater risk.

“Today’s decision upends the legal framework that has protected America’s waters for decades,” Biden said. “It also defies the science that confirms the critical role of wetlands in safeguarding our nation’s streams, rivers, and lakes from chemicals and pollutants that harm the health and wellbeing of children, families, and communities.”

But Honeycutt said she didn’t worry about a negative impact.

“For those that are concerned about this decision, I would say that ranchers and landowners across Montana and the United States are stewards of the land,” she said. “They work, live and breathe the land that they live on – and really they try to take the best care of that, whether it be land or water.”

Kulbeck echoed that.

“We understand that the EPA, the Corps of Engineers, has a responsibility to protect navigable rivers and clean water,” he said. “Farmers and ranchers feel the weight of that responsibility, and in a way, that leads them to protecting those water rights, those waterways, probably more than anyone else ever has.”

The organizations are now hoping the Biden administration will go back and revise their broader policy on waters of the U.S.

“To bring that needed clarity to those rules – so, yes, we protect the nation's waterways, but we also have clear rules that allow us to manage our private property in a way that's environmentally conscious, but then also allows us to produce the food and fiber that America needs,” said Kulbeck.