Perspectives on the Upcoming Supreme Court Decision on WOTUS from the Restoration Economy Community
Want to build a house in a flash flood zone? After the Supreme Court decides on Sackett v EPA in October, maybe you can. Credit: “Flash Flood in the Cove, Snake Valley.” Paul Inkenbrandt, CC-BY-SA 2.0.
“Waters of the United States,” or WOTUS, is a jargon-y term describing the extent of the federal protections of wetlands, streams, rivers, and lakes across the US under the Clean Water Act (CWA). The Supreme Court (SCOTUS) will hear Sackett v EPA on October 3rd to rule on what constitutes WOTUS. This case could have huge implications for the public, the regulated community, and the restoration economy - a little-known sector that employs 126,000 across the US in activities like the restoration and mitigation required under the CWA.
We blogged earlier about the background of this Court case and a potential scenario where the Supreme Court adopts some version of the ‘Scalia test’ from a previous Supreme Court case (Rapanos v United States). The Scalia test asks if a water or wetland has surface water connection and continuous flow to a navigable water. If so, it is WOTUS. Under this interpretation, intermittent and ephemeral streams and wetlands without surface water connection and continuous flow would lose federal protection. This interpretation has widespread consequences, not only for environmental efforts, but also economic ones. You could build a house right in a flash flood zone, since a desert wash does not have continuous surface water connection to a navigable water.
Many organizations that carry out ecological restoration, wetland and stream mitigation, and who advocate for clean water are tracking the upcoming Supreme Court decision because it would affect their business and advocacy efforts. We surveyed 11 organizations that are part of the restoration economy to get their perspectives on what the results of this court case could mean.
Everyone we surveyed thought that the Supreme Court would adopt some version of the ‘Scalia test’ noted above. One hope was that the court would provide an interpretation that would not drastically reduce protections of intermittent and ephemeral streams. The Supreme Court decision could significantly affect the scope of federal protections of aquatic resources.
“[The scenario] is likely to markedly reduce federal jurisdiction over those wetlands without surface connection to navigable waters or perennial stream systems as well as loss of jurisdiction over intermittent and ephemeral streams. The effect will be notable in the west and southwest as far as streams are concerned. It would also be felt in the southeast where many forested wetland flats do not have surficial connections to traditionally navigable waters or perennial systems AND the state’s authority to regulate waters fall under Section 401 CWA.”
Published research that used the National Hydrography Dataset (NHD) predicted the loss of federal protection of ephemeral and intermittent streams from a previous change in WOTUS coverage (ie., from the Trump era Navigable Waters Protection Rule, or NWPR). This analysis conservatively estimated that ¼ of the nation’s stream channels (by length) lost federal protection. By reducing the extent of federal protections, the Supreme Court could reduce both the demand and value of stream mitigation credits.
Example of an ephemeral stream that could lose federal protection. Location: Upper San Pedro Basin Cochise County, Southeast Arizona. Credit: USGS
“Headwater channels are where most of the development occurs. Ephemeral channels are the upper most channels within watersheds, so it stands to reason that removing ephemerals from federal jurisdiction will reduce demand for offsets across the West and Southwest. ...in the Fort Worth District, ephemeral credits can be used for intermittent impacts, but only when using a steep multiplier (3:1). So, if a bank with ephemeral credits wants to compete with a bank with intermittent credits, it can only do so at a steep discount.”
The impacts of the Supreme Court decision speak to a loss of federal protections, but that does not necessarily mean that streams and wetlands lose all protection because state law could come into play. Twenty-three states have wetland laws that are stronger than federal protections. For these states, impacts could be minor.
“State resource agencies currently administer aquatic resource mitigation programs in cooperation with the Corps of Engineers under their own independent authorities and under the federal Clean Water Act and the 2008 Mitigation Rule. This often leads to differences among the States under the present jurisdictional framework, and would not markedly change if the federal jurisdictional framework were altered.”
States could also pass laws to fill the loss of federal protections and take on new permitting authority, although there could be a slow down in permitting as states face a steep learning curve. On the other hand, some states have laws that prohibit the state to regulate more stringently than the Feds. This patchwork in state law could result in a geographic shift of business related to wetland and stream restoration.
A patchwork of state-level protections, with some states that expand or contract protection with changes in the federal definition of WOTUS (= WOTUS), states that have limited additional protections (WOTUS +), and states that have comprehensive protections greater than WOTUS (> WOTUS). Based on ELI, 2022.
“Our wetland mitigation services would likely gravitate more toward those states that would still require mitigation for impacts no longer considered jurisdictional under Sackett.”
About half of the respondents (5/10) thought changes in wetland and stream permitting would occur immediately after the decision, while some (4/10) noted that it could take the regulators (EPA and the US Army Corps of Engineers) some time to develop and implement guidance about the SCOTUS decision, and one respondent thought impacts would not be felt until late 2023. Another respondent thought some permittees would seek amendments to their permits if areas that had previously been considered WOTUS now were not WOTUS.
The Supreme Court decision could also affect Bipartisan Infrastructure Law projects. Respondents shared a variety of opinions, some thinking this could delay timelines by creating regulatory uncertainty, setting back the permitting process, or requiring revised environmental surveys, while others took the opposite viewpoint, surmising that it could speed up BIL projects in cases where a lack of mitigation credits currently causes delays.
Finally, we asked what the public should know about the upcoming Supreme Court decision. Here are the responses.
“We are all products of our watersheds, and less thoughtful development of streams and wetlands is likely to create problems that extend from individual developments throughout our watersheds. If we replace headwater channels with rooftops and parking lots, downstream communities will be subjected to increased flooding, pollution and channel erosion. Like it or not, as imperfect as it is, federal jurisdiction under the CWA has become the only means of balancing the conflicting interests of private property rights and broader community watershed health.”
“Building resilience to climate change and its extreme weather events is more important than ever. Now is the time to do more watershed restoration, not allow more watershed degradation.”
“Non-adjacent wetlands provide critical ecosystem services for communities such as filtering water, providing natural water storage which can reduce drought impacts on water supplies, and even reduce wildfire impacts on water resources.”
Thank you to all the survey respondents for graciously sharing your perspectives! These perspectives help flesh out the implications of the upcoming Supreme Court decision on WOTUS. EPIC will continue to follow developments and provide a level-headed discussion of implications.
