The Future of the Waters of the United States after Sackett v. US Environmental Protection Agency

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In the ruling of the recently decided court case Sackett v. US Environmental Protection Agency, the Supreme Court has scaled back water protections under the definition of “Waters of the United States” in the Clean Water Act.

In May, the US Supreme Court limited the authority of the US Environmental Protection Agency (EPA) to regulate the nation’s waterways. In the ruling opinion of Sackett v. EPA, the majority of justices have more narrowly interpreted the definition of “waters of the United States,” or WOTUS, in the Clean Water Act. The new interpretation puts constraints on the types of waterways that EPA has the authority to regulate.

The plaintiffs, Chantell and Michael Sackett, argued that their private land in Idaho does not fall under the regulatory scope of EPA. But the agency had informed the Sacketts that the couple would be fined for developing their property because the land contains wetlands that are protected under the definition of WOTUS in the Clean Water Act. Under the new interpretation of WOTUS by the Supreme Court, the wetlands on the Sacketts’ land are not subject to EPA regulation, and the Sacketts are allowed to develop the property.

Sheila M. Olmstead, a university fellow at Resources for the Future, shares insights about the opinions that the justices issued in Sackett v. EPA and the implications of the decision for US waterways.

Resources: What is the new interpretation of “Waters of the United States” as defined by the Clean Water Act, based on the recent decision by the US Supreme Court in Sackett v. EPA? What’s the significance of the word “adjacent” in the new interpretation?

Sheila M. Olmstead: The new interpretation basically goes back to the late Justice Antonin Scalia’s interpretation of the Clean Water Act, which also was the basis for the Trump administration’s Navigable Waters Protection Rule. This interpretation relies on the adjacency criterion, which says that a waterway is under the jurisdiction of the federal government only if that waterway is adjacent to navigable water.

In the same case in 2006, Rapanos v. United States, in which Scalia argued for the adjacency criterion, former Justice Anthony Kennedy argued that a “significant nexus” between a navigable water and another waterway needs to exist for the federal government to have jurisdiction. Adjacency is insufficient to determine whether a significant nexus exists, because, for example, groundwater—which isn’t obviously nor even necessarily correlated with adjacency—could link two waterways.

The significant nexus argument drove the Obama-era Clean Water Rule, and the adjacency argument drove the Trump-era rule. Now, the decision in Sackett v. EPA says that the adjacency argument should be the one in play.

We don’t have great estimates of the on-the-ground meaning of these different interpretations—what they mean for decisions about whether wetlands, ephemeral streams, and so on are under federal jurisdiction. Determining which waterways count under the various definitions is quite difficult. And the justices on the Supreme Court have to rule on questions that are extraordinarily complex from a scientific perspective. I don’t think this setup does the science justice. The people making decisions are highly trained with one set of skills—but not skills in hydrology. We’ve given our judicial system an impossible task to try to accomplish, which is why Congress needs to help fill in the gaps. If Congress wants a very specific interpretation that is not in the Clean Water Act, then Congress needs to clarify that interpretation with legislation.

Now that the decision has been made for Sackett v. EPA, what waterways are still protected under the Clean Water Act? What types of waterways now are unregulated?

For the obvious waterways, like the Mississippi River and other big lakes, rivers, and streams, nothing changes. The waterways that really are in flux are wetlands and ephemeral streams, or streams that flow intermittently.

Many streams in the western United States that are in arid or semi-arid regions are ephemeral or intermittent. I live in Central Texas, and we got rain last night, so I know my local creek is flowing. But most of the time, that creek isn’t flowing. This intermittency is the nature of hydrology in many parts of the West.

I think a bias exists that implies familiarity with the more humid eastern United States and water systems in the East. This bias is hard for people who aren’t hydrologists or scientists to grasp. Sackett v. EPA is going to affect a much larger share of miles of rivers and streams in the West than in the East because of that bias and how we think about what a river or stream is.

Then, of course, wetlands will be affected. Wetlands have been batted in and out of federal jurisdiction in all of these different interpretations. With the new ruling, the federal government is likely to lose a significant chunk of jurisdiction over wetlands.

Would we expect any particular changes to or implications for the waterways where EPA no longer has regulatory authority?

It’s going to vary by state. EPA has tried to break down by state what was happening with waterways and tried to understand the legal regimes in the states that may in some cases be even more stringent than the regulations under the Clean Water Act. The challenge is understanding what’s happening on paper versus what’s happening in the real world. Florida, for example, is currently in conflict with EPA. When the Biden administration replaced the Trump-era Navigable Waters Protection Rule with a new rule, Florida said, “We’re not enforcing the new rule; we’re sticking with the Navigable Waters Protection Rule.” This was true even though Florida, according to some interpretations, has state laws on the books that go further than federal law in protecting wetlands. Florida isn’t even enforcing its own state laws with respect to waterways. So, what happens on paper and in practice can be quite different, and figuring out the reality can be hard.

But a lot of heterogeneity can exist across states. In California, Sackett v. EPA may not have much of an effect, but you’re going to see a much more active response to the removal of federal jurisdiction in a state with, for example, more pressure from the development and agricultural communities to fill in a wetland. Those communities won’t have to go through an extensive permitting process that would have been required under federal jurisdiction.

The absence of a permitting process can yield economic benefits; for example, projects can move faster, and land development can happen in places where development has been constrained. The downside is that we won’t know the environmental damages from those projects, because we won’t need the permitting process anymore. The US Army Corps won’t have to figure out what the impacts on water quality will be, and so on.

State activity will be interesting to watch. Some states responded to the decision in Rapanos v. United States by increasing the stringency of their wetland regulations. You could expect some states to now try and replace some of the protections that were lost with the loss of federal jurisdiction.

Can you describe any notable implications for how the Supreme Court has been considering the authority of EPA and other federal agencies in recent cases like Sackett v. EPA and West Virginia v. EPA (the 2022 Supreme Court decision that limited EPA’s ability to regulate greenhouse gas emissions from power plants)?

This Supreme Court seems to be much, much less deferential to the expertise and discretion of federal agencies, in terms of interpreting the meaning of congressional legislation, than prior, less conservative courts. That stance touches everything.

The question that naturally comes up is that, if an interpretation of a law isn’t up to the agency, which is filled with scientific experts and people who’ve been working in their field for years—in other words, if an agency isn’t the one to figure out what the impacts are going to be—then it’s sort of surprising that the task falls to the Supreme Court. We get into a difficult situation such that, because Congress is unspecific, and we say that we can’t leave interpretation to the scientific experts, now we’re leaving the interpretation to the Supreme Court. This situation is not necessarily the best place to be for setting environmental standards that are economically efficient or scientifically justified.

Source: Resources