As the title illustrates this is a long read. I wanted to get the details correct before criticizing a landmark decision of the Supreme Court of the United States (SCOTUS).
In 1972, in response to rivers catching fire, the Clean Water Act was enacted to solve the pollution problems of the ‘navigable waters of the United States’ (WOTUS)’. For the first 34 years the Environmental Protection Agency and the Army Corps of Engineers (Corps), the two agencies charged with defining WOTUS and implementing CWA regulations, used a broad definition best described by Justice Kennedy in a 2006 opinion: Wetlands that are not adjacent to a traditionally navigable water must have a “significant nexus” with one. This requirement is satisfied if the wetland has a significant effect on the water quality of navigable waters.” This reasoning recognized the growing scientific evidence that wetlands, even if ‘isolated’, provide significant environmental services to the entire watershed – flood & drought moderation, water filtration (‘kidneys” of the landscape), storm buffering for coastlines. And crucial habitat for resident and migratory birds.
May 25, 2023, in the Sackett v. EPA ruling, in a 5-4 majority, SCOTUS justices returned to a different 2006 opinion expressed by Justice Antonin Scalia. The majority held that jurisdiction over adjacent wetlands requires “first, that the adjacent [body of water constitutes] . . . ‘water[s] of the United States,’ (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”
This eliminates any consideration of a ‘significant nexus’ that considers scientific evidence that connects water movement, underground or seasonal, to other waters in the watershed and which on their own may provide one or more of the significant wetland environmental services. It effectively eliminates federal protection of ‘isolated’ wetlands and moves protection decisions to states. Where often the long-term positive cost-benefit-benefit ration of wetland environmental services is overlooked in favor of short-term economic development cash.
For us birders, as well as everyone who likes to fish and swim in clean water and prefers to drink safe, cheap water, the ruling puts at risk, unless mitigated by ‘enlightened’ judgement of state regulators, up to 50-90 million acres, half or more of the remaining wetlands that provide the big three environmental services.
By the way, a safe bet is that this short-sightedness will be admitted to by the next set of politicians out to ‘solve our pollution, flooding, and coastal devastation problems’ and an extraordinary invoice will come due. For Exhibit A see the price of the Everglades Restoration Project that is an attempt to right the wrong of ignoring the fact that the Everglades is a waterway connected to all of south Florida and the Gulf of Mexico.
Clean Water Act Backstory
Yellow-crowned Night Herons are an elegant representative of the fascinating family of wetland birds. Living in coastal marshes & mangroves as well as inland lowland wetlands – swamps, bogs, freshwater marshes – and having evolved to exploit wetland bounty, their fate is intricately tied to the fate of these disappearing and degraded ecosystems. 85% of North American wetlands have been drained, filled, or otherwise ‘tamed’ since the 1600s. 50% of the world’s wetlands have been destroyed in just the last 100 years.
Wetlands not only provide habitat for many fauna and flora species, 40% of global species live and breed in wetlands, they also provide three ecosystem services that directly benefit humans: 1. Flood & drought moderation through water storage 2. Water filtration before it enters the aquifer and enters our freshwater drinking and recreational water sources (‘kidneys” of the landscape) 3. Storm buffering for coastlines and coastal communities.
The negative and costly impact of the absence of these services has become increasingly apparent since the 1980s. Hurricane Katrina’s full force hit on New Orleans without the coastal marsh buffering of years past is an obvious stark example. Not so obvious is how the absence of wetlands, especially upper-watershed wetlands, has compounded and amplified flooding events intensified by climate change. For example, in the U.S. upper mid-west and Vermont: “In watersheds where wetlands have been lost, flood peaks may increase by as much as 80 percent. Wetlands within and upstream of urban areas are particularly valuable for flood protection.”
Back to birds. The need to conserve & protect water bird species from human-driven devastation, e.g., overhunting of ducks and plumage hunting of herons and egrets, was recognized in the early 20th century and led to the early conservation movement, including the enactment of the Migratory Bird Treaty Act of 1918. Focused primarily on regulatory policy to protect the birds from direct killing, the movement also worked to conserve and protect habitat, especially for waterfowl. These habitat restoration and preservation efforts led by and funded by an alliance of environmentalists, sportsmen and women, and federal agencies did slow the loss of some tracts of wetlands. Good examples being the establishment of the first national wildlife refuge on Pelican Island in 1903 and Ducks Unlimited Canada’s 1938 start to restoring and managing Big Grass Marsh, northwest of Winnipeg, Manitoba. But the loss of wetlands and degradation of wetlands continued at an alarming pace: “Between the 1950s and 1970s, for example, more than a half-million acres of wetlands were being lost every year. By the mid-1980s, the nation had lost over half its original wetlands.”
What was not happening was a parallel effort to maintain the water quality of the watersheds surrounding the preserved, or not preserved, wetlands. When I was a kid growing up in the 1950s and 1960s, many major waterways in the Georgia coastal plain that my father fished and swam in became so polluted that my parents would not let me and my siblings swim in them. You certainly did not want to eat shellfish from their estuaries in famed Low Country recipes. Due to agricultural runoff, many creeks, ponds, and small lakes in my central Florida childhood home region were only fit for ‘mudcats and mudfish’ (bullhead catfish and bowfins). Georgia and Florida were not alone, in 1969 the Cuyahoga River in Cleveland caught fire in what had become an annual event.
CWA Arrives And Immediately Controversial
That got the attention of even the most callous politicians and the Clean Water Act of 1972 (CWA) was enacted to solve the pollution problems of the navigable ‘waters of the United States’ (WOTUS). This phrasing was important. Navigable linked the act to the traditional role of waterways in interstate and foreign trade and therefore a federal matter. Waters of the United States further elevated the Acts scope above just individual states. Both gave the Act’s assigned implementers, the Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps), authority to set federal definitions, such as what constitutes WOTUS, and standards for permitting that would govern local waters.
There was an immediate outcry of federal overreach that has not stopped.
Having to literally put out fires and stop open sewage from flowing through major cities, the EPA and Corp’s initial regulatory priorities focused on major rivers and lakes as well as wetlands directly touching these waters. However, the EPA’s definition of WOTUS, and that of most lay citizens, was inclusive of all waters within and connected to and influencing the health of traditionally defined ‘navigable’ waters. This understanding arose in large part from Congress’ elaborated ambitious targets: “to make all U.S. waters fishable and swimmable by 1983; to have zero water pollution discharge by 1985; and to prohibit discharge of toxic amounts of toxic pollutants”. It was pretty well understood that these targets were meant to cover the ‘old swimming and fishing holes’ back home. The ones constituents knew and loved.
At issue, as always, were implementation details. The CWA followed a familiar governmental path. Congress legislated broadly and ambitiously – to make their voters happy – then delegated implementation details, especially complex scientific details, to the ‘experts’ in the executive branch – to take the heat from negatively affected parties. In the case of the CWA, the legislation was out ahead of the environmental sciences at the time and left plenty of room for heated challenges from developers and polluters to ‘federal overreach’, specifically, what was protected, or not protected, that is what specifically are WOTUS.
Within this debate there is a topic of much heated and critical dispute: Are so called ‘isolated’ wetlands WOTUS and within the jurisdiction of the CWA rules. Or, are they subject to the often more lenient state land use permitting regulations. Which are often tied to economic development considerations.
An exact understanding of how upper-watershed ecosystems were connected to downstream watersheds, on the surface and below, was very nascent in the 1970s. Of particular interest was what upper-watershed ecosystem services addressed flooding and pollution, how providing these ecoservices benefited the overall aquatic landscape, and how their value and costs should be calculated in permitting.
Answers to these questions began to emerge in the 1980s and early 1990s and began to inform EPA regulations. ‘Swamps’ perceived as mysterious, disease ridden, useless wastelands to develop and put into productive use, especially for agriculture, were becoming more correctly understood to be of immense value to preserving inhabitable landscapes – for us and Yellow-crowned Night Herons and Prothonotary Warblers.
Though the basis for many industry challenges to the CWA, this early gap in CWA WOTUS vagueness and the emerging understanding of wetlands, especially ‘isolated’ upper-watershed wetlands, connectivity to ‘navigable waterways’ was not a fatal issue over the first 34 years of CWA implementation. While science was catching up, Courts held, if only intuitively and for the most part on a case-by-case basis, the interpretation that WOTUS was inclusive of ‘navigable’ waters and adjacent wetlands. This view was held even if the contested wetlands were ephemeral or did not have a visible surface connection, because it was understood that many such ‘isolated’ wetlands could, and often did, directly influence the water quality of ‘navigable’ waterways. Including pollution conditions across state lines and country borders thus sliding into the CWA’s claim of federal interstate commerce jurisdiction.
Back to birds. This interpretation connected the migratory bird conservation movement to the CWA in an interesting way, the “Migratory Bird Rule”: Migratory birds as defined by the Migratory Bird Treaty Act are interstate and foreign travelers with cross border recreational and economic benefits. Breeding and stopover wetlands are considered ‘other waters’ in section 404 of the CWA and subject to the Commerce Clause. A prime example being the Pothole Region of the U.S. that is within boundaries North American prairies, and which is widely regarded as the Duck Factory.
Debating What Are WOTUS
This broad interpretation was severely dented in two Supreme Court of the United States (SCOTUS) decisions. One case was directly relevant to birders and allied conservationists. In 2001 in Solid Waste Agency of Northern Cook County (SWANCC) v. Army Corps of Engineers, SCOTUS held the Migratory Bird Rule was not by itself a sufficient basis for the Corp’s authority to include isolated, non-adjacent wetlands as ‘navigable waters’. The majority noted that in this case there was not a “significant nexus” between the disputed wetlands and ‘navigable waters” as understood in earlier cases. The Court ruled SWANCC could fill the ponds of an abandoned sand pit that had overtime become breeding and stopover waters for migratory birds. The Corp’s set out to redefine WOTUS to follow the Court’s decision.
Long Curvy Road To Define WOTUS
You are about to enter a lengthy timeline recital of CWA rule making and legal challenges. You would not be scolded if you skimmed it. Just keep in mind if you skim or read in detail that the crux of the fighting was not, is not, over the pollution constructs of the CWA provisions. The public, at least the majority, does not want rivers to catch fire or deadly diseases to be spread in our water supplies. At issue is a question more niche and relevant to birders: Are ‘isolated wetlands’, as habitat for thousands of species and an integral part interstate and intercountry movement and species survival, a federal jurisdiction concern and therefore protected from loss and degradation as Waters of the United States?
While the EPA and Corp’s were working on new rules, including the aborted 2003 rules regarded as too restrictive by Congress, SCOTUS added to the WOTUS confusion in the 2006 Rapanos v. United States case. Rapanos filled in three wetlands, without Michigan state or Corp’s analysis or permitting, to build a shopping center on his property. The government brought a civil suit. Rapanos argued before the District Court that the CWA gives the government jurisdiction to regulate only traditionally navigable waters. Both the District and Appeals courts rejected the argument. The case moved to SCOTUS. In a 4-1-4 split ruling, SCOTUS found in favor of a plaintiff suing the Corp’s over withholding a permit to Justice Antonin Scalia, joined by three other justices, wrote the plurality opinion: WOTUS ‘‘include[ ] only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams[,] . . . oceans, rivers, [and] lakes,'” and “wetlands with a continuous surface connection” to a “relatively permanent body of water connected to traditional interstate navigable waters.”
Justice Kennedy concurred with the four justices but offered a different reasoning. He returned to the concept of “significant nexus” and wrote, “wetlands need not have a continuous surface connection to a continuously flowing body of water to be covered under the CWA, but mere adjacency to a tributary of a navigable water is not sufficient. Instead, Wetlands that are not adjacent to a traditionally navigable water must have a “significant nexus” with a one. This requirement is satisfied if the wetland has a significant effect on the water quality of navigable waters.” He even went on to say this might be the case for Rapanos’ wetlands, but he had not provided sufficient evidence.
The dissenting opinion was a little more straight forward: The inclusion of all wetlands adjacent to tributaries of navigable waters which met either standard was consistent with the CWA’s purpose of eliminating pollution in the nation’s waters and the Corps’s regulations should be upheld as a reasonable interpretation of the Act.
In the end no legal questions regarding WOTUS were clearly answered. After the decision, courts have generally applied both tests, but have predominantly leaned on Justice Kennedy’s “significant nexus” approach. Rulings in District and Appeals courts have hardly been consistent. EPA policy makers and Corp’s engineers went back to drafting new rules in an attempt to bring clarity.
In 2015, the Obama administration published Clean Water Rule (CWR) defining WOTUS. Within two days legal hell broke loose. Twenty-seven states file actions in eight federal courts of appeals and 18 federal district courts. Over the following months into 2016, there are multiple stays from multiple courts that affect combinations of states, but not others, attempted national bans to implement until further review. There was even confusion on which federal courts could in fact hear challenges. In January 2017, SCOTUS agrees to settle the question of which court, Circuit or Appeals.
In the meantime, in early March 2017, the Trump administration publishes their intent to “review and rescind or revise” the Clean Water Rule. In June, they announce they are rescinding the CWR and will create a new rule that will be based on Justice Scalia’s opinion in Rapanos. Through the remainder of 2017, through entirety of 2018 and 2019, legal confusion reigns in multiple courts. All the while, the EPA and Corp’s relies on ‘pre-2015’ standards to try to resolve requests for permits. If they are asked.
In January 2020, the EPA and Army Corps finalize the “Navigable Waters Protection Rule: Definition of “Waters of the United States” (NWPR). The new rule reduces the number of waterways and wetlands protected by the CWA, as compared to the 2015 Clean Water Rule and even the pre-2015 regulations. It is immediately challenged. And challenged, and supported, and challenged. In June 2020, the NWPR takes effect, or not, depending on which state(s) still have cases pending.
The chaos continues through January 2021 at which time the Biden administration announces they will review the NWPR. Some courts, not all, agree to put their cases on hold pending the review and possible new rule. But most do not. Intertwined chaos continues as court actions continue, almost monthly. November 2021, the administration proposes a rule that would reinstate the pre-2015 definitions of “waters of the United States” updated to reflect the Supreme Court case law. In January 2022, a final rule is published.
There was, however, a pending SCOTUS case, Sackett v. EPA, that arguably was intentionally constructed to bring to SCOTUS a case for the purpose of concluding the WOTUS question in favor of Justice Scalia’s viewpoint. In briefs filed in April 2022, petitioners argue for a two-step test in determining when a wetland is regulated under WOTUS. Step one would evaluate whether the wetland is “inseparably bound” via continuous surface-water connection to another body of water. Step two would consider whether that body of water falls within the definition of a “water of the United States.” In June the EPA files a brief arguing for application of the significant-nexus test. Legal fights abound, with the basic outcome that the new WOTUS rules are blocked in twenty-six states.
SCOTUS Severely Restricts What Are WOTUS
May 25, in a 5-4 majority, SCOTUS justices held that jurisdiction over adjacent wetlands requires “first, that the adjacent [body of water constitutes] . . . ‘water[s] of the United States,’ (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.” This eliminated any consideration of a ‘significant nexus’ that considers water movement, including carrying pollutants underground or through or over attempts to dike or divert flow from the WOTUS test. This means that waters that have an underground connection to those lakes/rivers, scientifically proven to be a connection for upper-wetlands, and waters that are separated from the lakes/rivers by man-made barriers that can be breached are no longer protected by the Clean Water Act. Depending on who’s counting, that’s 50-90 million acres, half or more of the remaining wetlands that remain. With three billion birds already gone, that is 50-90 million acres the survivors cannot afford to lose.
As an avid birding nerd, I fully acknowledge that I am not in the majority. I am not discounting at all the fact that I and my kids and grandkids will have to deal with the impact on a personal basis. What gives me perverse satisfaction though, is the understanding that one outcome of this wrong-headed decision that will get everyone’s attention is flooding and it’s impact on the simple pleasures of swimming and fishing. On Seed Lake in Rabun County GA our boathouse has been submerged and the shoreline devastated in three separate ‘100 year events’ in just the last four years. It is fast becoming expensive, if not impossible, to get flood insurance, even for mountain property. While I worry a lot about the loss of habitat for my bird friends, most of the other homeowners are now worried about their swimming and fishing, as do I. But as long as we have a common cause to take to the Georgia legislature, which is where the battles will now have to be fought, I am good.