One year after the U.S. Supreme Court removed federal regulations protecting wetlands and streams from development pressures in its Sackett v. the EPA decision, Colorado is the first state in the nation to pass legislation replacing those regulations, according to a new national report.
The report, by the Clean Water For All coalition and Lawyers for Good Government, shows that eight other states have taken action to restore some level of protection or are trying; five launched failed attempts to impose further cutbacks; and one state, Indiana, rolled back protections further. Thirty-five states have taken no action.
Environmentalists say the spotty response is a clear indication that Congress must intervene to create consistent, clearly defined protections that work for all states, and which protect rivers and wetlands that cross state boundaries.
“Different states are struggling to see how to respond to it,” said Kristine Oblock, senior campaign manager for the Clean Water for All coalition. “And the state-by-state solutions are not going to be enough to protect our waters. … Our goal is to restore federal protections.”
The problem is particularly acute in Colorado and other Western states, where vast numbers of streams are temporary, or ephemeral, flowing only after major rainstorms and during spring runoff season, when the mountain snow melts. The Sackett decision said, in part, that only streams that flow year-round are subject to federal oversight. It also said that only wetlands that had a surface connection to continually flowing water bodies qualified for protection. Many wetlands in Colorado have a subsurface connection to streams, rather than one that can be observed above ground.
The Sackett decision came after decades of federal court battles over murky definitions about which waterways fall under the Clean Water Act’s jurisdiction, which wetlands must be regulated, and what kinds of dredge-and-fill work in waterways should be permitted. There also were long-running disputes over what authority the act had over activities on farms and Western irrigation ditches, and what activities industry and wastewater treatment plants must seek permits for.
Finding a clear, bipartisan solution that Congress might embrace isn’t likely to be easy. “It’s only been a year, so a lot of different entities are still working out the path forward,” said Jonathan Wood, vice president of law and policy at Montana-based Property and Environment Research Center, or PERC, a conservative think tank that filed a brief supporting the Sacketts, in last year’s Supreme Court case. The Sacketts are private landowners.
“It’s possible that Congress could act,” Wood said. “I think there is an appetite for it but it seems unlikely. And if the suggestion is to just go back to how it was applied pre-Sackett, I don’t see a path forward for that.”
Polls in Colorado and nationwide show majority support among Democrats, Republicans and independents for restoring protections.
Colorado lawmakers were able to win bipartisan backing for their bill after weeks of intense negotiations. Whether the same thing could occur at the national level is a big question.
“Bipartisan is easier at the state level because you aren’t trying to regulate different hydrologies across the country. Any time you’re trying to establish a rule that applies to New England and the West, it is difficult,” Wood said. That Colorado lawmakers were able to agree on regulatory exemptions for agriculture, developers, some cities and other industries also likely helped propel the measure to passage, Wood said.
And there are other options besides Congress. PERC’s mission is to find free market solutions to environmental problems. Wood said PERC would like to see incentives for private landowners to protect wetlands, something Indiana lawmakers approved this year, even after removing other protections. PERC would also like to see industry held accountable for paying the costs of restoring the wetlands that have already been lost.
“Wetlands reduce pollution from someone else, so why not make the polluters pay,” Wood said. “These kinds of opportunities all provide a path forward that is less conflict ridden than the Clean Water Act regulations that have applied for the last several decades.”
Still, environmentalists plan to keep their eyes on Congress, said Josh Kuhn, senior water campaign manager for Conservation Colorado.
“It’s clear that there is bipartisan support for this effort from the public and we need them to make their voices heard,” Kuhn said. “Doing so will create the political will to address the threat of deteriorating water quality and the impacts of climate change,” Kuhn said.
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