On May 25, 2023, the United States Supreme Court issued its disastrous Sackett v. EPA ruling. This decision invalidated environmental protections for much of our nation’s streams and wetlands by narrowing the definition of “waters of the United States” (WOTUS).
The Sackett decision is anti-science and creates inconsistency and confusion by passing water protection decisions to the state level. Waterways, of course, do not recognize state boundaries.
In the year since the Supreme Court ruling, two states passed or introduced legislation to create new permitting programs to fill the gap in federal protections and eight states passed or introduced stronger laws and policies to strengthen state protections. Two states passed legislation weakening state-level protections, while efforts to weaken state protections failed in four other states.
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Background
On May 25, 2023, the Supreme Court issued its long-anticipated decision in Sackett v. EPA, No. 21-45 (US May 25, 2023) (slip op.). Brought by plaintiffs from Idaho looking to develop their property, the case centered on whether wetlands on private property could be regulated by the federal Clean Water Act (CWA).
The Sackett decision’s key holdings include: The Clean Water Act only applies to “waters;” “Waters” are geographical features commonly described as streams, oceans, rivers, and lakes; Certain jurisdictional “waters” must be relatively permanent, standing, or continuously flowing; Adjacent wetlands that are indistinguishable from those “waters” due to a continuous surface connection are also protected.
In other words, ephemeral streams with seasonal variance and wetlands that do not have an obvious surface connection to standing waterbodies are likely to lose federal protection. Other waterbodies that may be at risk include: Streams and rivers that go subsurface; Intermittent streams and rivers; Headwater and low-order streams with low flows and/or which are located miles from traditional navigable waters; Intrastate rivers and streams.
In many states, this accounts for more than half of linear stream miles, while ephemeral streams play a critical role in the arid West.
Some 59 percent of linear stream miles in Virginia are either intermittent or ephemeral streams, according to a 2013 EPA report cited by the Chesapeake Bay Foundation, with the same findings showing those waters accounting for 41 percent of linear stream miles in Pennsylvania.
E&E News by Politico
State Action
States must pick up the slack to protect clean water in the absence of federal regulations. A handful of states introduced legislation strengthening clean water protections or created permitting programs. Multiple states introduced efforts to roll back protections—and a few have succeeded.
Interested in learning more about state-by-state water and wetland protections? Lawyers for Good Government created a dashboard to track regulating agencies, existing protections, proposed changes to clean water regulations and more, all at the state level.
Washington’s Department of Ecology requested $2,400,000 from the legislature following the Sackett decision. This funding was intended primarily to conduct rulemaking for a permit program that will protect wetlands and other waterways in Washington no longer subject to federal jurisdiction. During the 2024 legislative session, the Senate Ways & Means Committee stripped this funding from the Senate budget. Soundkeeper mobilized in coalition with the Nature Conservancy and other NGOs to recover $2,000,000 of the funding in the final budget.
Federal Legislation and the “Clean Water Act of 2023”
WOTUS’ definition is a vital baseline issue for clean water advocacy and determines whether, and to what extent, the CWA applies to all types of waterways across the nation. Hydrologic systems are, by their nature and function, linked and should be regulated as such.
Last October, the “Clean Water Act of 2023” H.R.5983 was introduced in the House of Representatives. Its stated purpose is “to amend the Federal Water Pollution Control Act to restore a national minimum standard of protection for the water resources of the United States while providing certainty to regulated entities.”
The bill is not perfect, but its definition of “protected waters” is expanded to include: Waters subject to the ebb and flow of the tide; The territorial seas; All interstate and intrastate waters (and their tributaries), including lakes, rivers, streams (including intermittent and ephemeral streams), and wetlands.
The bill is unlikely to pass any time soon, but clean water advocates (including Puget Soundkeeper!) are remaining alert to any problematic amendments. The United States needs strong federal environmental laws to respond to the complexity of ecosystem function across political boundaries, and the existential threat of climate change.
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