USA - What a pending Supreme Court ruling could mean for Biden’s new clean water protections

Before a bipartisan Congress passed the Clean Water Act in 1972, cities pumped raw sewage into lakes, mining companies discharged acid waste into streams, and factories poured chemicals into rivers, which occasionally caught on fire. The Clean Water Act made such pollution illegal and expanded the federal government’s authority to regulate waterways across the country.

But if you haven’t gotten around to perusing the bill’s 112,000 words, you might not know that it doesn’t clarify whichwaterways federal agencies have the power to protect. Can factories dump waste into seasonal streams without the Environmental Protection Agency’s oversight? Wetlands? Ponds? The Clean Water Act doesn’t provide clean answers; it merely tasks the federal government with keeping toxic chemicals and other pollutants out of “navigable waters,” which it defines as “waters of the United States, including the territorial seas.”

Late last year, the Biden administration tried to clear up the half-century of confusion with a new definition of “waters of the United States.” The rule, which went into effect in March, restored protections lost in the Trump era for thousands of streams and wetlands across the country. But it faces major headwinds: States and national special interest groups have sued to reverse it; a federal judge has already halted it in 24 states; and the drama is sure to escalate any day — when the Supreme Court rules in a crucial case, Sackett v. Environmental Protection Agency. Environmental advocates worry the justices will gut the Clean Water Act by imposing a narrow reading on what counts as one of the “waters of the United States.” That is, the court’s conservative majority could decide the federal government doesn’t have the authority to protect something like half the country’s wetlands.

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“The potential impact of the case is hard to overstate,” said Jon Devine, director of federal water policy at the Natural Resources Defense Council. “If the Clean Water Act can’t protect wetlands under those circumstances [in the Sackett case], we have a huge problem in trying to achieve our water quality goals.”  

Ever since the Clean Water Act became law, legislators, regulators, and judges have offered various, and sometimes conflicting, ideas about how to tell if a body of water is among the “waters of the United States.” There is general agreement that the Environmental Protection Agency and Army Corps of Engineers have authority over coastal waters, lakes, rivers, and other obviously “navigable” waterways. But there’s no small amount of controversy when it comes to marshes, mires, fens, bogs, vernal pools, prairie ponds, pocosins, sloughs, small streams, seasonal streams, and rain-dependent streams.  

The definition could determine the fate of millions of acres of wetlands, which are vital to healthy ecosystems across the country.

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