With a recent U.S. Supreme Court decision sharply curtailing federal oversight of streams and wetlands, environmental groups working to restore the Chesapeake Bay say they’re worried about gaps in state laws and enforcement practices that now leave those waters vulnerable to unrestricted development and pollution.
In a May 25 ruling the nine justices unanimously agreed that the U.S. Environmental Protection Agency overstepped its authority in declaring part of an Idaho couple’s home site wetlands and demanding that they get a permit to fill it.
But the court’s majority went further in Sackett v. EPA and, with a 5–4 vote, drastically redefined which streams and wetlands are protected under the Clean Water Act. In doing so, it sought to settle decades of debate by removing federal regulation of activities affecting isolated wetlands and tiny streams that flow with water only after heavy rains.
“I’m not aware of anyone who predicted this,” said Peggy Sanner, Virginia executive director of the Chesapeake Bay Foundation.
She called it a “serious setback” for environmental protection efforts in general, as well as for the Bay restoration effort.
Wetlands and those periodically dry stream beds help keep water-fouling nutrients and sediment from reaching the Bay while also providing critical habitat and soaking up floodwaters.
Farmers, developers and other business organizations welcomed the ruling. The Virginia Farm Bureau’s blog called it “a major victory for farmers and property rights,” while the chair of the National Association of Home Builders dubbed it a win against “federal overreach” and for “common-sense regulations and housing affordability.”
Passed in 1972, the Clean Water Act gave the federal government jurisdiction over “navigable waters” and set up a permitting program to regulate discharges of dredged or fill material into “waters of the United States,” including wetlands.
A legal and political dispute has flared on and off since then about how far upstream that authority applies. Congress amended the Clean Water Act in 1977 to specify that it also covered wetlands “adjacent” to navigable waters, but that hasn’t quelled the controversy. The Supreme Court has weighed in repeatedly since the 1980s, with shifting and conflicting opinions.
In 2015, the Obama administration sought to clarify what’s regulated with a rule that protected isolated wetlands and “ephemeral” streams with a “significant nexus” to navigable waters.
That drew fierce backlash from farmers, developers and energy companies. The Trump administration repealed it and proposed a much narrower rule that applied federal regulations only in cases where surface water contributes to the wetland or waterway in question. States and environmental groups sued.
A court threw out the Trump rule, and the Biden administration has been working on another, more expansive version.
Environmental lawyers say the Sackett ruling appears to restrict federal jurisdiction even more than the Trump regulation. The EPA and U.S. Army Corps of Engineers, the two agencies that regulate activities affecting wetlands and waterways, had estimated that the Trump regulation would have stripped federal protection from more than half of the nation’s wetlands and roughly one-fifth of its streams.
Bob Dreher, legal director for the Potomac Riverkeeper Network, estimated that the recent court decision removes protection from as much as 65% of wetlands nationwide and more than 80% of the streams.
In the Bay watershed, the impact is somewhat muted. Five of the six states and the District of Columbia provide at least some protection under their own laws for wetlands and streams now removed from federal jurisdiction. Delaware is the only outlier, one of 24 states nationwide that rely entirely on the Clean Water Act for safeguarding their waters, according to the Environmental Law Institute.
Maryland, Pennsylvania and Virginia each have comprehensive state laws that provide protection from disturbance for their wetlands and all waters, even groundwater, noted the Bay Foundation’s Sanner.
West Virginia law also contains a broad definition of “waters of the state” but, according to the law institute’s James McElfish, the state has not always required permits for activities in wetlands and streams that fall outside the federal interpretation.
New York last year strengthened its protections for freshwater wetlands, but the state only requires permits for activities affecting wetlands larger than 7.4 acres, unless they’re deemed to be of “unusual importance.”
David Reed, executive director of the Chesapeake Legal Alliance, foresees trouble, even in states with strong legal protections on the books. State and federal agencies have jointly reviewed applications for permits to disturb a wetland or stream. Now, with the federal role shrinking, he said, there won’t be a backstop for state regulators facing intense pressure to look the other way.
“It will push them inevitably toward laxer enforcement,” Reed said of the states. “It will be this insidious direction toward less and less protection.”
Before the court’s ruling narrowing federal jurisdiction, Virginia, for instance, had relied on the Army Corps to review developers’ delineations of wetlands and surface waters when they were seeking permits.
In late June, the state’s Department of Environmental Quality announced that it would take over that task and would prioritize those applications where the delineations are performed by certified private wetlands professionals. The agency said the change would “restore certainty in the permitting process and allow projects to move forward in a timely manner.”
The Bay Foundation’s Sanner said she was encouraged by DEQ’s “thoughtful” process for continuing to protect wetlands while ensuring efficient permitting. But she cautioned that “many questions remain” about the state’s response to the court ruling.
Another major concern is that most states do not offer their citizens the same right to go to court to enforce their laws as the Clean Water Act does. The federal provision for “citizen suits” has allowed environmental groups to go after polluters in federal court and often prod state regulators to act when they haven’t before, Reed said.
Environmentalists say the Supreme Court decision also puts a cloud over the section of the Clean Water Act that establishes federal and, by extension, state authority to regulate discharges of stormwater and other pollutants into dry stream beds or isolated wetlands.
Activists say the Supreme Court’s ruling means they’re going to have to press for stronger state laws and for staffing and budget increases for regulatory agencies to enforce them.
“If we’re going to have hope for states to be a little of a backfill here, we’re going to have to help states get up to speed,” said Betsy Nicholas, the Potomac Riverkeeper Network’s vice president of programs.
by Tim Wheeler
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