As Supreme Court weakens Clean Water Act, what does it mean for WA?
May 25, 2023 Updated Thu., May 25, 2023 at 8:59 p.m.
SEATTLE – A U.S. Supreme Court ruling Thursday that eroded longstanding water protections might have little effect in Washington because of the state’s more stringent laws safeguarding wetlands, but it could have implications for endangered species and tribal lands.
In an opinion by Justice Samuel Alito, the court ruled that water protections apply to wetlands “indistinguishable” from nearby bodies of water and are only protected if they are close to a bigger waterway and wet enough that it’s hard to determine where the water ends and the wetland begins.
That significantly differs from state wetland protections, which will remain intact. Waters that are no longer considered “waters of the U.S.” under the ruling will retain protections as waters of the state, said Colleen Keltz, a state Department of Ecology spokesperson.
“We are disappointed in today’s U.S. Supreme Court decision that narrows federal protections for wetlands and streams,” Gov. Jay Inslee said Thursday in an emailed statement. “Today’s decision impresses the importance of our state’s strong suite of laws to protect and preserve these waters.”
People pursuing projects in Washington that have potential effects on wetlands under state definitions must coordinate with state wetland staff and apply for state permits. Those applicants must evaluate ways to minimize any effects and, in some cases, restore wetlands lost through permitted work or pay to improve offsite wetlands.
Typically, under the Clean Water Act, developers, farmers, and mining and oil companies would have to restore nearby wetlands or pay into a mitigation bank for any damage to wetlands on their property.
Thursday’s ruling could open up half of wetlands across the U.S. to unregulated development, said Janette Brimmer, a senior attorney for environmental law group Earthjustice’s Seattle office.
The decision will lower the bar for states, including Idaho and Alaska, that rely on the Clean Water Act standards to protect wetlands, potentially opening the door to mining companies, real estate developers and others who have been pushing to weaken the regulations for years.
Even in states with their own wetland protections, they lack jurisdiction to regulate waters within the boundaries of tribal lands. These waters are under federal jurisdiction. Some tribes, like states, have their own regulations that will also remain unaffected by the federal ruling. If tribes lack the resources to enforce tribal permitting requirements, the waters will be unprotected.
Earthjustice filed an amicus brief in the case on behalf of 18 tribes, including the Swinomish Indian Tribal Community, Quinault Indian Nation and Puyallup Tribe. Some Washington tribes are concerned about the effects the ruling might have on salmon and trout listed under the Endangered Species Act.
The Environmental Protection Agency defines wetlands as “areas where water covers the soil, or is present either at or near the surface of the soil all year or for varying periods of time during the year, including during the growing season.”
The ruling “ignores the Clean Water Act mandate to uphold and protect the physical, biological and chemical properties of waters, and it really ignores how watersheds function,” said Amy Trainer, environmental policy director for the Swinomish.
In Washington’s Skagit River watershed, for example, where the Swinomish retain treaty-protected fishing rights, endangered juvenile chinook use some wetlands that are seasonally disconnected.
These are areas off the main stem of the river and they stay dry in the summer. When rains come and the snow melts, water flows in, offering critical habitat for chinook, bull trout and steelhead to find refuge from predators and fatten up before heading into the saltwater.
The Clean Water Act was created after years of unregulated diking and draining of wetlands for agriculture, real estate or industry. The Swinomish has helped restore hundreds of acres of habitat lost during that era in the Skagit basin, increasing the estimated chinook smolt production by about 48,000.
“But its ability to address the many threats to salmon outside the reservation and throughout the watershed is limited,” the amicus brief stated. “The tribe has sometimes been forced to import salmon from Alaska to feed its members and continue its cultural practices and religious ceremonies.”
Despite protections in Washington, endangered Snake River salmon and other species that cross state borders could be subject to habitat degradation.
“There’s no question,” Trainer said. “For waterways that crossover into any state that doesn’t have a commensurate level of state protection, it is going to have an adverse impact on species because it means less habitat is available, less habitat is protected from pollution from development and from degradation.”
The legal fight resulting in Thursday’s ruling began nearly two decades ago. Mike and Chantell Sackett bought property near Priest Lake, Idaho, and began filling the lot with dirt, sand and gravel ahead of building a home. The property contained wetlands that fed into a tributary of Priest Lake.
The EPA found the work on the property violated the Clean Water Act. Lower courts ruled in favor of the EPA, holding that the act covers wetlands that feed into “traditional navigable waters” and the couple’s wetlands met that standard.
The high court’s more liberal justices were joined by conservative Justice Brett Kavanaugh in disagreeing with the new test authored by the majority.
“By narrowing the act’s coverage of wetlands to only adjoining wetlands, the court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States,” Kavanaugh wrote.
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