The recent U.S. Supreme Court decision limiting the Clean Water Act (CWA) jurisdiction over “adjacent wetlands” to those having a continuous surface connection to bodies that are “waters of the United States” (WOTUS) with no clear demarcation between the “waters” and wetlands has been hailed by some and criticized by others.
EPA’s New WOTUS Rule to Conform with Sackett
On Aug. 29, 2023, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers announced a final rule amending the 2023 definition of WOTUS to conform with the Court’s Sackett v. EPA decision, effective immediately. The final rule removes the significant nexus test from consideration when identifying tributaries and other waters as federally protected.
In a joint statement, the agencies indicated they “are committed to following the law and implementing the Clean Water Act to deliver the essential protections that safeguard the nation’s waters from pollution and degradation.” The action provides the necessary clarity to advance those goals while moving forward with infrastructure projects, economic opportunities and agricultural activities, the agencies note.
“While I am disappointed by the Supreme Court’s decision in the Sackett case, EPA and Army have an obligation to apply this decision alongside our state co-regulators, Tribes and partners,” notes EPA Administrator Michael S. Regan, who earlier indicated the Court’s decision “erodes longstanding clean water protections.”
Michael L. Connor, assistant secretary of the Army for Civil Works, notes the final rule enables the Corps to resume issuing approved jurisdictional determinations paused in light of the decision. The agencies plan to host listening sessions during fall 2023 with co-regulators and stakeholders on the matter.
Against Sackett Decision
Shortly after the Supreme Court decision, but before the EPA and Army’s final rule conforming with the Supreme Court, President Joe Biden issued a statement indicating “the Supreme Court’s disappointing decision in Sackett v. EPA will take our country backwards,” jeopardizing the sources of clean water upon which American families, farmers and businesses rely. He added that he and his team intended to work with the Department of Justice and relevant agencies to review the decision.
“The recent ruling, while protecting the property owners’ rights to the land they are building upon, is limiting in the wording that wetlands must directly adjoin rivers, lakes and other bodies of water,” notes Janey Camp, Ph.D., a research professor of civil and environmental engineering and director of the Vanderbilt Center for Transportation and Operational Resiliency. She also is a member of the American Society of Civil Engineers’ Committee on America’s Infrastructure, which issues the “Report Card for America’s Infrastructure.”
“Waters of the U.S. are often connected in ways not visible to the human eye,” Camp notes, adding water bodies such as intermittent streams and wetlands not only serve as filters to improve water quality in rivers, lakes and streams, but also as buffers and sponges during flooding.
“Allowing property owners to fill and change the properties of the soils and terrain will undoubtedly not only affect the flow of water but the ability of these waterbodies to serve their natural functions,” says Camp. “If not kept in check, this ruling may allow hundreds or thousands of acres of wetlands to be developed, which may transfer or exacerbate risks of flooding as well as negatively impact water quality.”
Camp believes this is critical as the U.S. moves into a future with climate change that includes more intense storms, flooding and increased temperatures affecting water quality, which, in turn, affects habitat for aquatic species and many municipal water supplies.
The Supreme Court’s decision “could potentially put engineers in a challenging situation where they are trying to determine which rules apply and how best to uphold oaths many of us take to uphold public health, safety and welfare,” notes Camp. “Stream and wetland determinations and permitting for development will undoubtedly become more challenging and possibly contentious when property owners are trying to develop areas that were previously protected.”
Camp expresses concern the Court ruling directly conflicts with best practices that have been adopted and executed for years through the U.S. Army Corps of Engineers’ Engineering with Nature Initiative. That program restores areas to their natural state, enabling more-sustainable delivery of economic, social and environmental benefits associated with infrastructure.
Sustainable water engineering may be fraught with challenges “because with a ruling like this, more pressure will be placed upon engineers to allow clients such as cities, developers and individual residents to fill and build in areas that were previously protected,” says Camp. “Best practices have historically focused on protecting these waterbodies, whether they be adjacent or intermittent. The path forward will require more investigation and time as well as more creative solutions to do development while trying to protect our nation’s waters, people and the environment.”
Kelly Moser, senior attorney and leader of the Clean Water Program at the Southern Environmental Law Center (SELC), notes “as we face a changing climate and increasing storms, the harm from the Supreme Court’s removal of wetland protections cannot be overstated. With burgeoning development and a changing climate, water is becoming scarcer, while flooding from storms is increasing. Wetlands that surround us sequester heat-trapping carbon pollution, improve water quality, and protect us from flooding by storing and absorbing rainwater.”
A rain event with flooding can inundate communities and infrastructure, causing property damage, overflows of raw sewage into the streets, and upsets of wastewater treatment processes, notes Moser.
“Increased development in or near wetlands and the decreased protection of wetlands under the harmful Sackett decision reduces the valuable, natural buffer role of wetlands and increases our vulnerability to flooding,” she adds.
The Supreme Court’s decision “could potentially put engineers in a challenging situation where they are trying to determine which rules apply and how best to uphold oaths many of us take to uphold public health, safety and welfare.” – Janey Camp, Ph.D., research professor of civil and environmental engineering and director of the Vanderbilt Center for Transportation and Operational Resiliency
According to a statement from the Waterkeeper Alliance, the EPA and Army Corps’ rule rewrite “significantly narrows the range of waters previously protected under the definition of WOTUS and opens the door for industries to contaminate and destroy wetlands, streams and other waterways, which play a fundamental role in providing and safeguarding clean water.”
The organization adds “pipelines, mines, and large-scale housing and business development will be allowed to move forward without meeting federal water-quality protections.”
“There could not be a worse time to weaken the Clean Water Act,” says Marc Yaggi, CEO of Waterkeeper Alliance. “Intensifying droughts are wreaking havoc on agriculture, pollution and toxins are increasingly threatening water sources nationwide, and millions of people are contending with dangerously contaminated drinking water.”
Waterkeeper Alliance maintains the WOTUS rule requires a broad definition under the CWA, arguing that limiting its scope will threaten critical protections for public health and many endangered species.
If a stream, river, lake or wetland is not included in the WOTUS definition, untreated toxic, biological, chemical and radiological pollution can be discharged directly into those waters without meeting any of the CWA’s permitting and treatment requirements, the Waterkeeper Alliance notes.
The organization adds excluded waterways also are subject to being dredged, filled and polluted with impunity because the CWA’s most fundamental human health and environmental safeguard— prohibition of unauthorized discharges—would no longer apply.
Marla Stelk, executive director, National Association of Wetland Managers, says “SCOTUS just reinterpreted the Clean Water Act and changed the intent as written by Congress in 1972, perverting the original Congressional intent behind the Clean Water Act, our nation’s landmark environmental legislation that has successfully cleaned up our nation’s waters for over 50 years. This decision is incongruous with modern science and universally agreed upon understandings of hydrological connectivity. The outcome will undoubtedly manifest in serious negative consequences on public health and safety, water quality, aquatic health, flood control, and wildlife.”
Like Sackett and/or Dislike EPA’s Final Rule
Carla Kugler, president and CEO, Associated Builders and Contractors (ABC), New Mexico, notes her organization applauds the Court ruling, “which rejected the unclear ‘significant nexus’ test and took a critical step toward eliminating the costly regulatory uncertainty plaguing construction projects nationwide for decades. ABC members understand the importance of being good stewards of our environment and water quality, but need clear and consistent regulations to do so while preventing unnecessary costs and delays.”
According to Kugler, the Sackett ruling demonstrates EPA and Army Corps of Engineers should have withdrawn their January 2023 WOTUS final rule and refrain from regulatory overreach that harms taxpayers and job creators and delays delivering the infrastructure improvements America needs to compete in the global market.
“Unfortunately, the agencies chose to simply strike language from the January 2023 rule to comply with Sackett, without undergoing a thorough rewrite to address the ruling’s impact on other elements of the rule, including the definition of ‘relatively permanent’ waters,” she adds.
Kugler calls the Army Corps’ now restored pause of all approved jurisdictional determinations (ADJs) in the wake of the ruling “an unnecessary step that delays vital Clean Water Act permitting processes.”
ABC will continue to call for regulatory clarity from the EPA and the Army Corps as it did with a recent coalition letter to the agencies calling for a thorough rewrite of the 2023 WOTUS final rule and “finally provide a definition that is durable, defensible and ends decades of regulatory uncertainty and litigation,” says Kugler.
Dave Bauer, president and CEO of the American Road & Transportation Builders Association, concurs and calls the new WOTUS rule another roadblock for transportation projects.
“After eight years of litigation, five contradictory regulatory actions spanning three administrations, hundreds of thousands of public comments, and one Supreme Court decision, EPA’s rule spurns the opportunity to deliver a lasting solution to protect the nation’s wetlands and brazenly hands this responsibility back to the courts,” Bauer says. “We are back to square one.”
Courtney Briggs, who chairs the Waters Advocacy Coalition (WAC)—comprised of more than 40 organizations representing small businesses, farmers and energy producers—says the revised rule does not adequately comply with Supreme Court precedent and with the limits on regulatory jurisdiction set forth in the Clean Water Act.
“Even worse, the agencies blocked public input and engagement in the revision process,” she adds. “This is unfortunate, as clean water is a public health and economic priority for our nation’s businesses, their employees, customers and the communities in which they operate.”
“After eight years of litigation, five contradictory regulatory actions spanning three administrations, hundreds of thousands of public comments, and one Supreme Court decision, EPA’s rule spurns the opportunity to deliver a lasting solution to protect the nation’s wetlands and brazenly hands this responsibility back to the courts. We are back to square one.” – Dave Bauer, president and CEO of the American Road & Transportation Builders Association
WAC’s stand regarding the 2023 WOTUS rule indicates it should eliminate standalone interstate waters and wetlands; adopt a relatively permanent standard consistent with Supreme Court precedent, excluding ditches; clarify the rule’s definition of “adjacent” in accordance with Sackett, and retain the rule’s codified exclusions.
While pleased with the Supreme Court’s decision, American Farm Bureau Federation President Zippy Duvall added that EPA had an opportunity to write a WOTUS rule that’s “fair to farmers and stands the test of time, but instead chose to continue government overreach and revise only a small slice of the rule rejected by the Supreme Court.”
He was pleased the “vague and confusing ‘significant nexus’ test has been eliminated as the Supreme Court dictated. But EPA has ignored other clear concerns raised by the Justices, 26 states and farmers across the country about the rule’s failure to respect private property rights and the Clean Water Act.”
According to Duvall, farmers and ranchers share the goal of protecting the resources with which they are entrusted and deserve a rule respecting them as partners in that effort.
Ross Ford, executive officer of the Utah Home Builders Association, says his organization’s membership believes the Court’s decision “did a good job defining the proper role of regulatory bodies. Stormwater regulation needs to be sensible and predictable.”
Water scarcity is Utah’s largest challenge, although there is sufficient water to meet needs if properly managed, says Ford, adding that regulations fail to manage or protect water quality, placing burdensome requirements and significant expenses for measures often doing nothing to improve or protect water.
“It is not uncommon to sacrifice effective protections for useless requirements,” he adds. “There are also competing interests with conflicting outcomes.”
As an example, Ford cites a regulation that requires dust to be controlled by using millions of gallons of water to make mud on a project site, although some job sites are miles from a water body and prevailing winds blow in a direction hundreds of miles from water. “The mud presents an increased risk of getting into storm drains, tracking on to roads,” he adds. “If the wind was to blow and kick up dust, it would be many times less than the surrounding land and would blow into the desert, causing no harm. Wetting it down, wasting millions of gallons of water, causes unnatural erosion and water-related issues.”
Ford says the best way to mitigate such challenges is through better water-management practices such as flood controls that also capture water to be used during dry times.
He calls for effective policies rather than “heavy-handed regulation” with more paperwork, inspections, fines and prescriptive requirements.
Ford believes Low Impact Development practices can, in some cases, improve water quality, but they won’t work on every development. “Local regulators willing to take time to understand the process and work with the private sector to design and implement a good plan can move the needle on water quality,” he adds.
More Burden on States, Tribes and Local Government
The post-Sackett landscape puts more emphasis on state-level legislatures and agencies to expand protections for wetlands where they are not already in place, notes Rebecca Kihslinger, Ph.D., senior science and policy analyst, Environmental Law Institute (ELI). (For a related viewpoint, read Chris Maeder’s column, “Supreme Court Slices CWA’s Reach,” on page 14.)
In a recently released report, “Filling the Gaps: Strategies for States/Tribes for Protection of Non-WOTUS Waters,” ELI examines changes in the interpretation of WOTUS resulting from judicial decisions or federal rulemaking placing a substantial burden upon state and tribal regulators and legislators.
The report indicates states must determine whether, and how, to keep up with shifting federal coverage by adopting and implementing protections for waters not protected by federal law and examines strategies states and some tribes can use.
“A big challenge for practitioners, communities and ecosystems will be increasingly uneven protections for waters and wetlands across different states,” notes Kihslinger. “Absent movement at the federal level, either in Congress or in the courts, we need to empower state-level administrators and legislators with best practices for protecting waters and emphasizing what’s at stake if we don’t strengthen these protections.”
“Absent movement at the federal level, either in Congress or in the courts, we need to empower state-level administrators and legislators with best practices for protecting waters and emphasizing what’s at stake if we don’t strengthen these protections.” – Rebecca Kihslinger, Ph.D., senior science and policy analyst, Environmental Law Institute
“Congress, states and local governments need to act fast to protect wetlands across the country and prevent harmful pollution from entering our waterways,” adds Moser from the SELC, which had filed a friend-of-the-court brief representing 113 environmental and community organizations in the Sackett case. Moser points to a recent decision in which North Carolina legislators voted to disallow state protection standards exceeding those of the EPA and Army Corps, overriding Democratic Gov. Roy Cooper’s veto.
Yaggi of the Waterkeeper Alliance concurs that Congress needs to act to restore clean water protections, adding “thousands of bodies of water—and nearly half of all wetlands in the lower 48 states—just lost their Clean Water Act protections. The Court’s short-sighted decision will have devastating consequences for our communities and hinder our right, under the Clean Water Act, to safeguard our nation’s waters.”
Stelk of the National Association of Wetland Managers adds that if states and Tribes are expected to fill the gap in protections for wetlands and headwater streams that have now lost federal protections, they will need adequate funding from Congress to develop and implement new enabling legislation and regulations, and to increase internal programmatic capacity to process an expected increase in permit applications and review time.
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