Supreme Court Limits Scope of “Wetlands” Considered Jurisdictional Waters of the U.S.
The U.S. Supreme Court on Thursday issued its highly-anticipated ruling in Sackett v. EPA, significantly limiting the extent to which wetlands may be considered “Waters of the United States” (WOTUS) and thus under the regulatory jurisdiction of the Environmental Protection Agency and Army Corps of Engineers.
Under the Clean Water Act (CWA), the EPA and Corps have jurisdiction over “Waters of the United States,” which includes not only waterways which may affect interstate or foreign commerce, but also “wetlands adjacent” to those waters.
The EPA and Corps have typically determined whether a wetland is jurisdictionally ‘adjacent’ by examining whether it has a “significant nexus” to traditional navigable waters. Under federal regulations, the agencies find that a “significant nexus” exists when wetlands “significantly affect the chemical, physical, and biological integrity” of those traditional navigable waters.
All nine justices agreed that the “significant nexus” test should be discarded, with Justice Samuel Alito writing that “‘almost all waters and wetlands’ are potentially susceptible to regulation under that test” and this “freewheeling inquiry provides little notice to landowners of their obligations under the CWA.”
While the justices were unanimous in overturning the “significant nexus” test, the Court was split on the appropriate standard for determining whether a wetland falls under the jurisdiction of the EPA and Corps. Ultimately, a bare majority of justices determined that jurisdictional wetlands are limited to those which have “a continuous surface connection” with a traditional navigable water, “making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”
According to CCA’s national partner the National Cattlemen’s Beef Association, “In practice, this likely means that isolated wetlands and other ephemeral features may not be subject to federal CWA permitting requirements.” The ruling will likely also necessitate revisions to the Biden Administration’s recent WOTUS Rule, which is partly rooted in the “significant nexus” test. According to NCBA, “the Biden rule is still theoretically in effect, but EPA and the Army Corps of Engineers will no longer assess CWA jurisdiction under the significant nexus test.”
AB 554 Shelved for the Year After CCA & Broad Coalition Rally Opposition
Following an outpouring of opposition from a coalition of animal agriculture groups and other animal caretakers – and mere days after CCA members lobbied against the bill in Sacramento at the Association’s lobby day – legislation that would have allowed radical animal rights groups to weaponize civil courts against livestock producers in California was shelved for the year. AB 554 (Gabriel) would have allowed anti-animal-agriculture activists to sue cattle ranchers and dairy farmers for alleged animal cruelty in civil court, opening the door to meritless, agenda-driven lawsuits. A coalition of animal agriculture and other stewards of animals, including CCA and Western United Dairies, rallied substantial opposition to the bill, forcing the author to turn AB 554 into a two-year bill, meaning legislators won’t have an opportunity to vote on the bill until 2024.
Sponsored by the Animal Legal Defense Fund, AB 554 would allow a Society for the Prevention of Cruelty to Animals (SPCA) to bring a civil complaint alleging a violation of “any law relating to or affecting animals.” Because California law allows any 20 citizens to incorporate as an SPCA, the bill would be easily weaponized by those who oppose animal agriculture. Current law rightly entrusts the state’s criminal courts and district attorneys to enforce laws ensuring the health and safety of animals in the state.
For more information on the dangers of AB 554, read the coalition’s opposition letter, here.
Newsom Issues Additional Executive Order Addressing Ongoing Central Valley Flooding
In mid-May, Governor Gavin Newsom issued an Executive Order aimed at mitigating Tulare Lake Basin and San Joaquin River Basin flooding which could result from historic Sierra Nevada snowmelt. The order permits diversion of flood flows within the basins through August 31 and clarifies the conditions under which diversion may be made. Newsom’s order also enabled activation of the Kern River Intertie, allowing Kern River water to be diverted to the California Aqueduct to prevent further flooding within the Tulare Lake Basin. In addition to the Executive Order, Newsom has introduced budget trailer bill language which would amend state law to permanently authorize the diversion of flood flows for groundwater recharge, when such flows are present. For further information, see last week’s edition of Legislative Bulletin.
Newsom Unveils Proposal to Streamline Infrastructure Projects
Earlier this month, Governor Newsom unveiled a series of proposals to streamline the “building of clean infrastructure so California can reach its world-leading climate goals while creating hundreds of thousands of jobs.” Newsom’s proposals seek to accelerate the permitting process for clean infrastructure projects and to limit delays caused by judicial reviews under the California Environmental Quality Act (under Newsom’s proposal, legal challenges under CEQA would need to be resolved in 270 days, limiting delays related to judicial review). According to a press release for the Governor’s Office, the proposals will streamline projects including “Water storage projects funded by Proposition 1” and the “Delta Conveyance Project.” For additional details, see last week’s edition of Legislative Bulletin.
SWRCB Extends Scott and Shasta River Watershed Curtailment Suspensions Through June 30
The State Water Resources Control Board (SWRCB) announced last week that it has extended suspensions of curtailments within the Scott River and Shasta River watersheds through at least June 30 so long as applicable minimum flow standards are maintained.
Minimum flows required to continue suspension of curtailments for the Scott River watershed, as measured at the Fort Jones gage, are 150 cubic feet per second (cfs) through tomorrow, 125 cfs from June 1-23 and 90s cfs from June 23-30.
Within the Shasta River watershed, curtailments are suspended for all water rights with a priority date of April 1, 1912 or earlier. For more junior water rights, suspension of curtailments is conditioned upon two factors: (1) sustained minimum flows of at least 50 cfs as measured at the Yreka gage and (2) “parties with suspended curtailments working with the Watermaster and [SWRCB] as appropriate to manage flows.”
Curtailment orders were previously fully rescinded for the Russian River and Sacramento-San Joaquin Delta watersheds.
New Episode of Sorting Pen: The California Cattleman Podcast
A New episode of Sorting Pen: The California Cattleman Podcast is out now. At CCA’s Feeder Meeting, Katie sat down with CCA’s Feeder Council Chair Joe Dan Cameron. Tune in as they discuss current issues and concerns from cattle feeders in California. To listen to the episode click here.
UCCE and UC Davis Veterinary Medicine Spring 2023 Cattle Health Webinar Series Recordings Now Available
University of California Cooperative Extension and UC Davis Veterinary Medicine are sharing recordings of their spring 2023 cattle health webinar series for California cattle ranchers. This series was co-hosted by UC Cooperative Extension advisors Tracy Schohr, Grace Woodmansee and Rebecca Ozeran and UC Cooperative Extension specialist Dr. Gabriele Maier.
The video recordings and additional resources from the webinar series can be found at ucanr.edu/sites/Rangelands/CattleHealth. The video topics and featured speakers include:
- Time to Help During Calving – Dr. Brett McNabb & Dr. Gabriele Maier, UC Davis School of Veterinary Medicine
- Mystery of Calf Abortions – Dr. Brett McNabb, UC Davis School of Veterinary Medicine
- Bugging Beef – Internal Parasites – Dr. Grace VanHoy, UC Davis School of Veterinary Medicine and Dr. Heather Fritz, California Animal Health & Food Safety Lab
- Bugging Beef – External Parasites – Dr. Alec Gerry, UC Professor of Veterinary Entomology and Extension Specialist
- The webinars and resources from the 2022 Spring Cattle Health Webinar series
For questions or suggestions on future topics, please contact Schohr at firstname.lastname@example.org.