I believe in private property rights and oppose government overreach.

I was raised right. Part of that Reagan-era raisin’ was the Gipper’s famous observation that the nine most terrifying words in the English language are, “I’m from the government, and I’m here to help.” Which brings me to the Environmental Protection Agency and the recent SCOTUS decision on Sackett v. EPA, one that ought to be applauded.

The decision that stands to keep every puddle out of the jurisdiction of the EPA was, of course, criticized by those in lockstep with the Biden administration. Gov. Jared Polis accused the justices of the land’s highest court of siding with “special interests and polluters.” In a statement, Polis said, “We are committed to protecting Colorado’s precious water resources to ensure that Coloradans can continue to count on a safe water supply vital for agriculture, recreation, and drinking water.”

Voters ought not be led astray by the vitriol and narrative cultivated by anti-agriculture types about the Sackett decision. It’s a good one and it’s certainly not a decision that will lead to the destruction of the nation’s waters. Don’t drink that Kool Aid.

The decision reversed the use of the reasonable nexus question and reverts to the Rapanos v. United States rule, a 4-14 decision and the use of a continuous surface connection test. In that decision, National Cattlemen’s Beef Association chief legal counsel Mary-thomas Heart said four justices recommended a continuous surface connection test, one justice recommending the significant nexus test, and four justices saying they didn’t particularly care for either test, but calling the significant nexus test the lesser of the two evils.

Since the Clean Water Act passed in 1972, the definition of Waters of the US or WOTUS has been a moving target with fresh iterations making the regulatory process unclear even by EPA standards. It’s noteworthy to recognize that there were two unanimous – not technically unanimous – holdings in the lengthy Sackett opinion. Without a continuous surface connection, wetlands like those on the Sackett property are not federally jurisdictional. The second unanimous holding is that the significant nexus test is not the standard that the EPA and the Army Corp of Engineers ought to use when determining if a feature is jurisdictional under the Clean Water Act.

One of the clarifications of note for portions of rural Colorado enjoying higher than normal rainfall this year is the much narrower standard of the continuous surface designation. There is standing water in a number of alfalfa and wheat fields around my hometown. Because SCOTUS ushered the reasonable nexus question out the door, landowners can, in the case of a soggy alfalfa field in a wet year, enjoy the clarification that the EPA won’t have jurisdiction over the puddle. In ag country, there are plenty of ephemeral water features that only show water after rainfall events and the like. The continuous surface connection and the SCOTUS opinion both offer clarity for features like isolated wetlands, prairie potholes, vernal pools, playa lakes, those features that are not on their own connected to downstream navigable water.

Government moves slowly by design, and the moving target and whiplash doled out in defining WOTUS is stilled by this decision. Perhaps most significantly, especially in the 24 states in which the Biden rule is in effect, Heart said the administration will, at a minimum, have to pull that rule back and complete significant revisions. Heart may have been looking in her crystal ball when she predicted the next target would be the regulation of groundwater under the CWA, a fight that will affect small to medium sized livestock feeds. As if on cue, enter the Center for Biological Diversity in cahoots with the Environmental Law Clinic at the University of Denver’s Sturm College of Law.

Colorado agriculture is closely watching the progress of a suit brought against the Colorado Department of Public Health and Environment, Division of Environmental Health and Sustainability and Water Control Division by the Center for Biological Diversity and Food & Water Watch. The environmental petitioners brought this action against the state claiming the CDPHE’S permitting process for animal feeding operations is flimsy. The permitting process, just updated in 2022, is far more stringent than other states where the petitioners have gained a foothold trying the same attack as this one. Zach Riley, executive vice president of Colorado Livestock Association praised CDPHE and the attorney general’s office for their response and the cooperation between agriculture and CDPHE in protecting water. More on that another week. For now, I’m enjoying the ability to exhale in the days following a positive SCOTUS decision.