The Supreme Court Rolled Back The Clean Water Act – What Does That Mean For You?

The Supreme Court Rolled Back The Clean Water Act – What Does That Mean For You?

On May 25^th 2023, the United States Supreme Court delivered a ruling on the Clean Water Act (CWA) that reduced the scope of water bodies covered, and limited the power of the Environmental Protection Agency (EPA) and the US Army Corp. Enacted in 1948 and expanded in 1972, the Clean Water Act covers “the discharge of pollutants into bodies of water of the United States, and regulating quality standards for surface water”.

While challenged several times, the crux of this latest case centred on specific terminology and defining what exactly counts as a body of water in the United States. It focused on terminology that targeted wetlands, including marshes, bogs and areas that are periodically saturated with or covered by water.

The ruling ultimately narrowed the scope of what could be considered a federally covered water body, by establishing that wetlands and other bodies of water must be “indistinguishable” from and present a “continuous surface connection” to “traditional navigable waters” to be covered by the CWA. This ruling represents a significant headache to existing legal precedents, environmental groups and organizations seeking permits.

Here are some key points to walk away with:

• Repeated legislative rulings endanger government organizations’ oversight.
  As a historically tricky subject, the coverage of the Clean Waters Act and what exactly counted as “water of the United States” has been challenged several times in the past two decades via the language used. For the past 17 years, wider coverage has seen the phrase “significant nexus” leveraged to greatly expand permitting and pollution requirements. Past and present administrations have seen definitions proposed, challenged, redefined and challenged again as legal entities try to define environmental concepts in grounded language. As recently as January 2023, the EPA and the Army Corp of Engineers released their redefined “Water of the United States” definition. Meanwhile, at the federal level this ruling will have varying levels of impact across state jurisdiction and the coverage of previous legal precedents in future environmental protection pursuits.
• Healthy wetlands provide tangible benefits.
  While wetlands may not be as captivating as the Great Lakes or the myriad rivers that crisscross the United States, they cover an estimated 5.5% of the lower 48 states. Even more significant: of that relatively small coverage, 95% of the waterways are composed of freshwater. As such, they offer a long list of benefits to their environment and the surrounding populations. Wetlands filter pollutants and sediments, and act as crucial habitats for migratory birds, various species of wildlife and multiple endangered animals. Approximately one third of the 1900 North American bird species utilize wetlands in some manner, and around 130 are “wetland dependent”. This ruling will potentially remove vast swathes of streams and wetlands from protection, exponentially increasing the likelihood of pollution and extreme levels of consumption, destroying these environments’ ability to protect and provide. From tourism that relies upon the species that inhabit these bodies of water to the industries that rely on the quality of water, the dangers are enormous.
• Compliance headaches will continue.
  Regardless of the decision made by the Supreme Court, firms and EHS functions will still need to conduct operations around these bodies of water. The ruling, while a legal statement, has not yet been implemented into permitting and compliance processes within the EPA. Much like other changes in regulation timelines – such as the delay in the SEC’s climate-related disclosures – the progression of its dissemination will create delays in application, review and approval timelines, as local and federal agencies attempt to integrate and understand how the ruling impacts their coverage. As stewards of the environment, EHS functions should strive to be as proactive as possible, implementing strict quality control and monitoring measures when operating in regions that are considered wetlands.