Supreme Court Wetlands Ruling Imperils Waters on Public Lands

Wetlands and waterways in national parks, monuments, forests and other federal public lands are newly vulnerable to pollution and development in the wake of the Supreme Court’s May ruling in Sackett v. EPA, natural resources attorneys say.

But because federal lands have some protection under the National Environmental Policy Act and a raft of other laws, there is broad disagreement among attorneys about how Sackett affects public land.

Sackett creates a federal jurisdictional test for waters and wetlands “that is divorced from science” and will “disempower federal land managers from protecting critical water resources on public lands,” said Craig Galli, senior partner at Holland & Hart LLP in Salt Lake City and a distinguished practitioner in residence at Brigham Young University Law School.

The ruling effectively eliminates the federal government’s role in regulating many wetlands nationwide under the Clean Water Act as waters of the US, or WOTUS. The ruling narrows which waters and wetlands qualify as WOTUS, leaving wetlands and possibly ephemeral streams that are not directly connected to large navigable rivers, streams, and coastlines either unregulated or regulated only by states. The opinion paves the way for unpermitted dredging and filling of many streams and wetlands for construction across the country.

Headwaters, Parks Unprotected

But how the ruling affects the nearly 640 million acres of land already controlled by federal agencies including the Interior Department and US Forest Service is complex.

Ephemeral and intermittent streams and other wetlands with no direct connection to navigable waters are found throughout national forests, parks, and Bureau of Land Management public lands, especially in the arid West, which hosts most of the country’s federal land and where many streams run only when it rains.

“Waters that are on federal lands including national parks are not automatically considered federal waters unless they meet the standard for being a water of the United States,” Donna Downing, senior legal policy adviser for the National Association of Wetland Managers, testified during a July 26 House Transportation and Infrastructure Committee Democrats’ roundtable on Sackett.

Sackett shrank that standard, leaving waters on federal lands vulnerable, she said.

Protections afforded to wetlands under federal land management rules will either not be as rigorous as the rules under the Clean Water Act, or those protections will be expressly tied to those waters being waters of the United States, said Andrew Hawley, staff attorney at the Western Environmental Law Center.

Though public lands laws and policies allow federal agencies to protect wetlands, the agencies have to choose to do so, said Sam Kalen, an environmental law professor at the University of Wyoming College of Law.

Wetlands that were protected under the Clean Water Act prior to Sackett could be at risk “if an agency doesn’t step in and fill that void,” he said.

The ruling will affect NEPA environmental reviews for timber sales, energy projects, road construction, and other projects on federal lands, but only on federal lands that have weak state-level wetlands regulations such as Alaska, said Duncan Greene, partner at Van Ness Feldman LLP in Seattle.

Many streams and wetlands high in the mountains are fed by snowpack and groundwater that form the headwaters of the region’s rivers and water supplies.

“By establishing a jurisdictional test that focuses entirely on surface waters, while ignoring the dynamic interaction of streams with shallow groundwater, a significant number of headwaters streams located on public lands will become non-jurisdictional,” and lose some protections, depending on what state they’re in, Galli said.

The Interior Department and the US Forest Service declined to comment.

Carole Holley, managing attorney for the environmental law firm Earthjustice, said nobody knows what Sackett means for federal lands in Alaska, which has millions of acres of both federal lands and wetlands. That’s because the court settled on an unclear notion of “waters of the US” that overlooks wetlands hydrology, sowing confusion.

“Many operators will take advantage of that confusion, along with the overworked regulators, to destroy these valuable ecosystems,” Holley said.

Broad Disagreement

Other attorneys disagree that the ruling will affect federal lands because the federal government already controls permitting there.

“Activities on federal lands require approval by a federal agency,” said Neal McAliley, shareholder at Carlton Fields PA in Miami. “Federal actions are subject to NEPA, the Endangered Species Act, and other laws that require the agencies to consider the environmental effects of their actions.”

A 1977 executive order that is still in effect is very similar to the Clean Water Act and requires all federal agencies to avoid construction on federally-owned wetlands, he said.

National forest plans often extend protections to all kinds of streams and wetlands, including ephemeral streams, making the ruling less important to federal lands, said Susan Jane Brown, a private environmental lawyer in Oregon.

“Laws like the National Forest Management Act, Federal Land Policy and Management Act, etc. extend protection to aquatic features too, making CWA application duplicative,” Brown said.

John Leshy, an emeritus professor at the University of California College of the Law-San Francisco who served as Interior solicitor in the Clinton administration, said he hasn’t deeply researched Sackett‘s implications for federal lands, but the implication that the Clean Water Act limits federal land managers’ authority to protect wetlands is dubious.

Leshy said Downing, who testified at the roundtable, seemed to be suggesting that when Congress passed the Clean Water Act, it deprived federal land managers’ power under the Mineral Leasing Act to limit water pollution from energy development.

“I don’t know of any court that has suggested that,” he said.