The Fight for Clean Water: Understanding WOTUS, Sackett, and How Businesses Can Protect Our Waters

The latest installment in the American Sustainable Business Network’s (ASBN) members’ only webinar series, The Policy Forum, covered the critical topic of Waters of the U.S. (WOTUS) and its connection to the Clean Water Act. ASBN’s Manager of Agriculture & Water Policy, Liza LaManna, was joined by Jon Devine, Director of Freshwater Ecosystems at National Resources Defence Council (NRDC), and Jennifer Collins, Coalition Director of Clean Water for All.

Understanding the Clean Water Act and WOTUS

The Clean Water Act, enacted in 1972 with wide bipartisan support, was created to address widespread pollution problems that had resulted in severely degraded waterways. Infamously, rivers had even caught fire due to the overwhelming burden of chemicals in the waters. The law intentionally extended pollution protections to various water bodies, designating federally protected waters as “Waters of the United States” (WOTUS). Polluting or destroying these waters requires a permit process to minimize and mitigate harm, and the law also mandates the cleanup of protected waters that fail to meet standards. For most of the Clean Water Act’s history, these protections applied broadly to virtually all surface waters, regardless of how often they flowed or if they physically connected to other waters on the surface.

This comprehensive approach makes sense because all kinds of water bodies provide critical functions and are interconnected. Wetlands, for example, are highly productive ecosystems akin to rainforests and coral reefs. They offer natural protection against floods and droughts, purify water, provide crucial habitat for numerous species, and are major carbon sinks. Wetlands support nearly half of all federally threatened or endangered species and habitat for up to half of North American bird species. Streams, even those that don’t flow year-round, are also vital components of the aquatic ecosystem. Perennial streams supply the bulk of water to larger rivers and provide benefits like moving nutrients and offering habitat. Rain-dependent or ephemeral streams contribute significantly to the flow in major watersheds and collectively provide drinking water to about 117 million people in the U.S.

“Thanks to the law and its broad applicability to all kinds of water bodies, the country’s waterways improved immensely over the history of the Clean Water Act,” says Jon Devine. However, challenges remained, with many water bodies still facing pollution issues and wetlands continuing to be lost at an alarming rate.

The Sackett Decision: A Significant Rollback

Against this backdrop came the Sackett v. EPA Supreme Court case, which Jon Devine describes as “representing perhaps the worst judicial rollback of environmental protections in U.S. history.” The case involved an Idaho couple with an excavating business who filled in wetlands on their property. While the EPA and two federal courts concluded these wetlands significantly impacted a nearby lake and would be covered under prior Supreme Court precedent, the case ended up reaching the Supreme Court.

The Court’s new majority adopted a restrictive new test for what waters the law can cover. It ruled that waterways must be “relatively permanent” to be included under the Clean Water Act. Furthermore, wetlands specifically must have a “continuous surface connection” to other protected waters to receive protection. Neither of these terms appears in the Clean Water Act itself.

Predicted Impacts of the Sackett Decision – 19 to 71 million acres of wetlands

While the Court didn’t define “relatively permanent” or “continuous surface connection,” this ruling puts at least some kinds of water bodies in significant trouble. Rain-dependent streams are particularly vulnerable under the “relatively permanent” test. The invented test for wetlands is likely to leave any wetland not immediately adjacent to another covered waterbody at potential risk of being filled without requirements to mitigate harm.

Estimates of the potential impact are stark. An EPA official stated immediately after the decision that as much as 63% of wetlands and millions of miles of streams could lose protection. The NRDC’s recent report, which utilized mapping tools, analyzed the impacts under different interpretations. Even under the most charitable reading of Sackett, they found that approximately 19 million acres of wetlands (about 60% of individual wetlands previously eligible for protection) would lack protection. This is considered a very low-ball estimate. Mid-range scenarios, mirroring interpretations suggested by many industry groups and some states, project that about 38 million acres of wetlands (78% of individual wetlands) will remain unprotected. The worst-case industry-driven approach could exclude an estimated 71 million acres (95% of individual wetlands) that were previously eligible for protection. For streams, industry arguments attacking protection for non-perennial and human-made tributaries could put the majority of the country’s 10.6 million stream miles, beyond the 2.1 million miles that flow year-round, at risk.

The Current Landscape and Opportunities for Engagement

The current administration plans to change federal regulations to align with Sackett and has sought comment on ways to further weaken the rules. If these interpretations are pursued, the future landscape could resemble the more dire scenarios depicted in modeling. EPA recently concluded a short comment period and is expected to propose specific regulatory language soon. While the ordinary regulatory process involves proposing rules and taking public comments, an Executive Order directed agencies to consider bypassing this process to address Supreme Court decisions, such as Sackett. Although bypassing public comment may add legal risk, it is conceivable that this could occur. However, the best guess is that a proposed rule will be introduced in the near future, presenting an opportunity to weigh in.

The Business Case for Clean Water

Having business voices involved is extremely important in these processes. ASBN’s “Clean Water is Good for Business” initiative is shifting focus to WOTUS at the federal level. ASBN’s steering committee recently submitted a joint comment endorsed by 20 businesses and assisted 13 businesses in submitting individual comments. ASBN also provided testimony at a small business listening session, highlighting the need for more diverse business perspectives. The business voice currently dominating these conversations does not represent the broad range of sectors impacted by clean water policy.

During ASBN’s Policy Forum, Jennifer emphasize that “we need to make sure that this issue doesn’t fly under the radar, and that we have as many folks as possible engaging and talking about the economic case, for why it’s important to protect our waters, why these waters matter for businesses, and why there should not be further efforts to roll back these protections.”

Many industries do care deeply about clean water as it’s crucial to their bottom line. Breweries, the recreation industry, fisheries, and small farmers and ranchers are a few examples of the business sectors that rely on clean water. Their stories serve as crucial counter-narratives, demonstrating that the dominant opposing voice doesn’t represent the true business perspective and that big polluters are exporting their costs on small businesses.

Communicating effectively is key. Recent polling shows clean water is a top environmental concern for people across the country. A majority of voters support protecting waters, especially after learning about the implications of the Sackett decision. The focus should be on connecting messaging back to the fundamental value and emphasis on clean water that everybody cares about.