From the Desk of Carston Haffner, Legal and Policy Intern
On May 26, 2023, the Supreme Court handed down another momentous decision weakening federal environmental protections - Sackett v. EPA. Not even a year ago, the Court ravaged the Environmental Protection Agency's (EPA) ability to regulate carbon dioxide emissions in West Virginia v. EPA. Yet again, the Court seems out to limit the power of federal agencies to protect our environment; only this time, the Clean Water Act (CWA) is in its crosshairs.
Before the Court in Sackett v. EPA, the question was whether CWA protections apply to wetlands. Under the CWA, all "waters of the United States" are federally protected. Since the late 1980s, this was interpreted to include any "wetlands adjacent to waters" already protected. To determine when a wetland was "adjacent," the enforcing agencies, the EPA and the Army Corps of Engineers (Army Corps) employed science-driven approaches evaluating biological and ecological connectedness. The EPA would use these factors to determine the scope of their jurisdiction over wetlands under the CWA. However, in Sackett, the Court has seen fit to redefine "adjacent" for the scientific experts - limiting the scope of CWA jurisdiction. "Adjacent," the majority ruled, means "to have a continuous surface connection with." The result is that the CWA will now only apply to those "wetlands with a continuous surface connection to bodies that are 'waters of the United States' in their own right." This new rule excludes wetlands separated from a covered water only by an artificial barrier, natural river berm, beach dune, or anything else.
Why are Wetlands so Important?
This ruling is a disaster for wetlands across the country. Wetlands are among the most productive ecosystems in the world. With shallow waters and high nutrient levels, wetlands are ideal for rearing species at the base of the food chain. This nutrient and species richness makes wetlands a "biological supermarket" where a myriad of species live or gather food. Wetlands' role in providing habitat and sustenance is not all though. Wetlands also serve to sequester carbon - capturing carbon and preventing it from being released into the atmosphere as harmful carbon dioxide emissions. Current studies indicate that mangroves and coastal wetlands can sequester up to 10x more carbon than mature tropical forests. Wetlands also contribute to the overall health of watersheds via groundwater and aquifer connections to other waterways. In summary, wetlands are integral to the health of ecosystems.
Impact of Ruling
So what exactly does this ruling mean for our wetlands? The EPA and Army Corps will now have to determine the new bounds of their CWA jurisdiction. While the majority purports to have clarified the scope of CWA jurisdiction, the new rule opens many further questions for these agencies to wrestle with. Will the CWA apply to wetlands with a surface water connection only on a seasonal basis? What about wetlands connected to a covered water by a pipe or culvert? How will this rule apply to areas where storms, floods, and erosion frequently move riverbeds? These are questions that will likely be resolved through lower court decisions and agency guidance.
While many questions have yet to be answered, one thing is for sure - the CWA will no longer cover many previously protected wetlands. What does this mean for those wetlands? What are the federal protections they will now be excluded from? The CWA prohibits discharges into the waters of the United States but may grant discharge permits (or permission to pollute) for specific uses. A critical facet of CWA protections is cross-agency consultation. Whenever the EPA grants a discharge permit, it must consult with other agencies to ensure compliance with other federal regulations. For instance, the US Fish and Wildlife Service (FWS) will assess potential impacts on wildlife. Likewise, the EPA must conduct an environmental impact assessment before granting a permit according to the National Environmental Policy Act (NEPA). Furthermore, the CWA allows granting a discharge permit only after a compliance check with the impacted states. This includes the state the water is within and any states downstream that will have their own waters impacted. These procedures, meant to ensure environmentally sustainable discharge practices, will no longer apply to the wetlands that the Court has severed from the CWA’s scope.
How will this Impact California’s Wetlands?
Are there any state laws that will protect the wetlands here? The primary law governing water quality control in California is the Porter-Cologne Water Quality Control Act. The act applies to "waters of the state" and establishes the State Water Resources Control Board as the agency tasked with enforcing the act. In 2019, in response to a Trump-era EPA rule narrowing what wetlands would be protected under the CWA, the State Water Resources Control Board adopted a State Wetland Definition. It defined "waters of the state" to include: any natural wetlands, any wetlands created by modification of the state's surface water, and artificial wetlands meeting specific criteria. This foresight by state agencies has ensured that wetlands in California will still be protected by state law even while federal protections are curtailed after this ruling.
However, state protections are not equivalent to federal protections. For one, the consultation procedures mandated in federal permitting will not be triggered by state permitting. This could result in federal permits being granted that could negatively impact wildlife and the surrounding environment. Furthermore, wetlands upstream of California waters may have no protections at all, depending on which state they are in. Previously, the CWA would prevent discharge into such waters if the discharge was non-compliant with California water quality law. Now, polluters may freely dump into those wetlands, negatively impacting California's waters while leaving the state with no recourse to prevent it. Water sees no jurisdictional or state lines.
Another critical difference between the CWA and the Porter-Cologne Act is how they are enforced. While the CWA may be enforced by citizen suit, the Porter-Cologne Act is only enforceable by state agencies. Citizen suits allow concerned citizens and non-governmental organizations (NGOs) to sue to enforce the requirements of a statute. Before, citizens or NGOs could sue polluters directly to enforce compliance with the CWA, but now polluters of wetlands are only liable to be sued by the state. This limits the ability of grassroots activism to protect California's wetlands.
While the full extent of the damage caused by this ruling remains to be seen, it's clearly bad news for our wetlands and, by extension, our natural environments. More now than ever, we need stronger environmental protections at the state level. This is true for water conservation and all environmental concerns, especially as the Court continues its worrying trend of dismantling our federal environmental statutes.
We encourage you all to be zealous advocates for strengthening state environmental regulations and to add your voice to the choir of opposition that this and similar rulings have provoked. EAC is very concerned about this ruling, as protection of local wetlands and estuaries is a key part of our mission. We will continue to advocate for strong protections of wetlands. We are thankful for the protections that are offered in California by the Porter-Cologne Act and the California Coastal Act, which protects coastal wetlands.
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