Legal experts gave senators conflicting views Wednesday on whether the Supreme Court’s Sackett decision is consistent with the science around the connectivity of waters.
“The Sackett opinion interprets the jurisdiction of the Clean Water Act broadly, while remaining true to both the text and the legislative history of the Act,” lawyer Susan Bodine of Earth & Water Law told the Environment and Public Works Committee.
But she said the rule issued last month by the Environmental Protection Agency to conform to Sackett fails to give full force to that decision, leaving considerable uncertainty that will – like numerous attempts to define the scope for the Clean Water Act – have to be addressed by the courts.
On the other hand, Mažeika Patricio Sulliván, director of the Baruch Institute of Coastal Ecology and Forest Science at Clemson, said the decision will be “catastrophic for water protection across the United States.”
The “primary conclusion” of the court, that a “a permanent hydrological surface connection” is necessary to establish federal jurisdiction, “demonstrates a fundamental lack of understanding of how natural waters function and connect across space and time,” he said.
Environmental groups have estimated that more than half of the nation’s wetlands – which total about 100 million acres in the lower 48 states – are at risk because of Sackett, in which the justices ruled unanimously for the landowners. Gone is the test laid out in the court’s 2006 Rapanos decision that in order to demonstrate jurisdiction, EPA or the Army Corps of Engineers must show that the wetlands or other waters at issue have a “significant nexus” to navigable waters.
EPA and the Corps issued a rule last month excising the significant nexus test from the regulations. But Bodine said the agencies invited further litigation by failing to define the meaning of what remains, including “relatively permanent” bodies of water.
“When you put it all together, EPA and the Corps are saying that if the upper reach of a stream is considered ‘relatively permanent,’ then they can regulate that upper reach as long as a flowpath (even if a dry channel or subsurface flow) extends to a ‘water of the United States.’” Bodine said. “It is not outside the realm of possibility that they will try to regulate the entire ‘flowpath,’ even parts that are not ‘relatively permanent.’”
“The sky is not falling,” Bodine said. States can pass laws to protect wetlands, and federal programs, including agricultural conservation programs, can be used to protect valuable waters.
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Sullivan, however, said after the hearing that about half the states are barred from approving water laws stronger than the Clean Water Act. He said some areas are particularly vulnerable.
“Up to 78% percent of headwater wetlands in coastal North Carolina could lose protection, as well as the majority of basin, bog, bottomland hardwood forest, Carolina bay, floodplain pool, hardwood flat, headwater forest, non-riverine swamp forest, pine savanna, pocosin, and seep wetland types found in the state,” he said.
Litigation is continuing over the Biden administration’s January final rule, which was not technically at issue in Sackett but which contained the “significant nexus” test that has since been removed. A federal judge in North Dakota who issued an injunction halting enforcement of the rule in 24 states recently lifted a stay on proceedings, allowing that case to move forward.
In all, the rule is enjoined in 27 states, where EPA and the Corps are implementing an older version of the regulations. In the other 23 states, the District of Columbia and territories, the agencies are implementing the January 2023 rule.
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