Months after the Supreme Court stripped federal protections for over half the nation’s wetlands, scientists and legal experts are raising new concerns about how the ruling could affect permits for pollutants in rivers and streams.
In a major shift in federal regulations for water, the high court ruled last year that only wetlands with a continuous, visible connection to a “relatively permanent” body of water are protected by the Clean Water Act.
While the Sackett v. EPA ruling cleared the way for developers and property owners to drain millions of acres of wetlands without a permit, it could have a secondary effect on how states regulate nutrients and toxic chemicals, including PFAS, that spill into waterways.
Simply put, Sackett is “not just about wetlands, wildlife habitat and open space,” said Kyla Bennett, a former wetlands permit reviewer at EPA.
“This is about, ‘Are we going to have enough clean water to drink?’ And the answer is, ‘No, we’re not,’” said Bennett, who now oversees science policy and New England issues at the nonprofit Public Employees for Environmental Responsibility.
In Sackett, the justices agreed that wetlands on the Idaho property of Michael and Chantell Sackett did not fall under the Clean Water Act, the 1972 law credited with cleaning up rivers choked by industrial pollution. Homebuilding companies, farmers and Republican lawmakers have hailed the decision as a win for private property rights.
More controversially, the conservative majority on the court may have also exempted from the federal law all waters that don’t flow for most of the year. Although legal experts say it’s unclear whether some seasonally flowing rivers remain protected, scientists and environmental advocates are watching for trends in state permits for industrial, municipal and agricultural waste that flows into federal waters.
The ruling could open the door for states to relax pollutant limits on discharges to bodies of water no longer covered by the Clean Water Act, said Betsy Southerland, a former director of science and technology in EPA’s water office. Pollutant limits are required under EPA’s National Pollutant Discharge Elimination System (NPDES) program, but most states administer permits through the program themselves.
“We will have to see how the states implement Sackett with their permits,” said Southerland, who is now retired. “You could say, ‘OK, I’m going to loosen up this permit, because now it doesn’t have to be so strict, since this water is no longer covered itself by Clean Water Act requirements, which only apply [farther] downstream.’”
Of particular concern for Southerland is the ruling’s potential influence on regulation of “forever chemicals” in waterways, given the toxicity of the human-made substances and the fact that EPA and states are just beginning to regulate them. One source of the chemicals, known as PFAS, is wastewater from industry and municipalities — regulated under NPDES.
The new flexibility for states exemplifies how Sackett could result in a patchwork of laws and requirements in the absence of broad federal oversight, legal experts said.
“It’s certainly true that if a waterbody or water resource is no longer a water of the U.S., a [discharge] permit would not be required from a point source to that aquatic resource, where it might have been in the past,” said James Rusk, a partner at Sheppard, Mullin, Richter & Hampton, based in San Francisco. “The practical implications depend a lot on where you are and what the state regime is there.”
A focus is the arid West, where irregularly flowing rivers that don’t meet the court’s “relatively permanent” standard are common. In New Mexico, for example, more than 90 percent of surface waters are exempt from the Clean Water Act following Sackett, state officials estimate, since most bodies of water only flow or fill up after rain or snowmelt.
As a result, many construction and industrial sites now no longer need an NPDES permit to spew pollutants into surface waters, according to the state’s Environment Department.
That could be a problem not just for fish, but also people. Roughly 40 percent of New Mexicans depend on surface waters for drinking supplies, said Shelly Lemon, chief of the state’s Surface Water Quality Bureau.
The Environment Department is working “as quickly as possible” to set up a state permitting program for surface waters to ensure discharges don’t slip through the cracks, Lemon said. Still, funding such a program in perpetuity, as well as hiring an estimated 30 to 50 people to staff it in sparsely populated New Mexico, will be challenging, she said.
“We know that [with] those activities, if they’re not regulated, those waters when it rains deliver the pollutants downstream,” Lemon said. “That will impact water quality in surface resources like the Rio Grande, the San Juan River and the Gila River. So that’s the concern.”
Outstanding questions and ‘hypotheticals’
States that had surface water protections in place when Sackett came down are not expecting immediate changes to their water pollution permitting programs.
Oregon and Colorado, for example, do not anticipate significant impacts to discharge permits under NPDES due to the court ruling. That’s because both states have laws on the books requiring permits for pollution into most state bodies of water, regardless of the definition of “waters of the U.S.” — a proxy for the bodies of water covered under the Clean Water Act.
Similarly, California’s robust permitting requirements should ensure few changes to water discharge permits there, said Rusk, the Golden State-based attorney.
Arizona, one of the most arid states in the nation, has a surface water protection program that covers certain waters beyond the definition of WOTUS, said Alma Suarez, a spokesperson for the Arizona Department of Environmental Quality. Even so, the department has not been able to implement the new WOTUS framework that EPA issued last year in response to Sackett, Suarez said. It is working with EPA to get clarity on the matter, she added.
“Important items, such as how long water flow needs to last to be considered relatively permanent, whether relatively permanent flow applies to waterbodies that cross state lines or international borders, and how pollutants are transported through a watershed, need more explanation,” Suarez said in an email.
EPA’s WOTUS definition last August was issued for the sole purpose of complying with the Supreme Court decision. While the definition is currently subject to litigation, EPA is committed to improving implementation of the new definition and is working with states and tribes to promote “clarity and consistency,” agency spokesperson Remmington Belford said in a statement to E&E News.
“In addition, the agencies may in the future provide revised or additional administrative guidance to address implementation of the amended 2023 rule or the pre-2015 regulatory regime, consistent with Sackett,” Belford said, referring to itself and the Army Corps of Engineers, which issues wetlands permits under the Clean Water Act.
The agency did not respond to a request for an interview or to questions about how the new framework for WOTUS could affect NPDES in various states.
Some legal experts disputed that Sackett could noticeably affect pollution discharges into waterways. Jonathan Brightbill, a partner at Winston & Strawn who worked at the Department of Justice during the Trump administration, said the ruling’s impacts on rivers, streams and “high value” wetlands will be minimal.
Under NPDES, the vast majority of industrial and municipal facilities discharge into major rivers and streams — and therefore remain subject to EPA oversight, even with the new, narrower WOTUS definition, he said.
“Those places aren’t dumping and discharging their water in isolated intrastate ponds, because they would’ve filled up with fill a long time ago,” Brightbill said. “I think as a practical matter, it is going to be a really small number of cases that are only interesting in the minds of people whose lives and careers are made up of hypotheticals.”
Belford said NPDES permits may still be necessary for some waters that are no longer jurisdictional.
“Discharges to non-jurisdictional waters and features, including discharges to non-relatively permanent tributaries, would still be subject to [NPDES] permitting requirements if the discharge reaches a jurisdictional water,” Belford said.
PFAS wild card
Other WOTUS watchers said the most significant impacts could be on contaminants that aren’t widely regulated under the Clean Water Act already.
That includes PFAS, a class of thousands of chemicals that have been found in waters across the nation and are linked to reproductive issues, cancer and other serious health problems. Bennett, the former EPA wetlands permit reviewer, said there’s “no way” EPA will be able to tackle widespread PFAS contamination with the newly reduced power of the Clean Water Act.
Under the law, EPA issues surface water quality standards for a variety of pollutants, with the goal of protecting both aquatic life and human health. States then implement those standards through requirements under the NPDES program.
In April 2022, EPA issued draft water quality criteria for PFAS levels for aquatic life. The agency may issue similar criteria for PFAS levels from the perspective of human health.
While many states adopt EPA water quality criteria into their NPDES programs, they can instead choose to set different standards, subject to federal oversight. They can also opt to only apply the criteria in waters of the U.S.
In light of Sackett, some states will evaluate whether to establish water quality standards for PFAS in non-federal waters, said Julia Anastasio, executive director of the Association of Clean Water Administrators. The bodies of water in those states may be located far away from population centers, she said.
“[The states] are making the choice, for resource reasons, where if it’s no longer a WOTUS, it’s not going to be top of their list in terms of setting water quality standards,” Anastasio said.
The problem, according to some scientists, is that the chemicals can easily get transported around once they’re in the environment.
This year, EPA is expected to finalize a rule that would require public water systems across the nation to monitor for and reduce PFAS levels for the first time. The rule would set a maximum contaminant level for six PFAS and could cost water utilities and municipalities millions of dollars. EPA and environmental advocates have said that public health benefits far outweigh the costs.
While the rule is being issued under the Safe Drinking Water Act, not the Clean Water Act, a key question is whether Sackett could eventually increase compliance costs for water utilities, said Kelly Moser, a senior attorney at the Southern Environmental Law Center.
Once surface waters are no longer considered “waters of the U.S.,” EPA generally cannot inspect them or track pollution discharges in them. And despite EPA’s 2022 draft water quality criteria for PFAS, many states still aren’t regulating the chemicals through NPDES, Moser said.
Even so, some legal questions remain unsettled.
For example, in a separate major decision in 2020, the Supreme Court ruled that entities that release pollutants into groundwater need to obtain a permit under NPDES if the activity has the “functional equivalent” of polluting a water of the U.S. Environmental advocates have hailed the ruling, County of Maui v. Hawaii Wildlife Fund, as a win for water quality — and a potential avenue for protecting water quality in the aftermath of Sackett.
“How [Maui] will play out with Sackett is a bit unknown at this point,” Moser said. “But the big picture overall is that Sackett is going to affect NPDES permits issued and is going to open the door for facilities to add more pollution to our drinking water sources.”