On January 1, 2021, President Biden signed an executive order telling federal agencies to review action and policies from the last four years for “inconsistencies” with policies in the order. The Environmental Protection Agency (the EPA) found such inconsistencies with the Clean Water Act (CWA). On June 9, 2022, they released new proposed rules to make the CWA more consistent with both the executive order and the CWA’s pre-2020 interpretations and practices. Meanwhile, the Supreme Court is hearing a case that could severely limit the government and the EPA’s ability to regulate and protect streams and wetlands.
Federal Water Pollution Control Act and the Clean Water Act
In 1948, the Federal Water Pollution Control Act was the first law to address and regulate pollution in US waterways. The goal of the act was to maintain the integrity of the nation’s “navigable waters” or “the Nation’s waters.” Maintaining the integrity of these navigable waters means to limit the discharge of pollutants and protect marine wildlife. However, as knowledge and awareness of the dangers of pollution spread, it was clear that the 1948 act was not enough. Thus, in 1972, it was greatly amended; this amended law became known as the Clean Water Act (CWA.)
The Clean Water Act greatly expanded the power of the EPA, such as implementing pollution control programs and preventing “point source pollution.” Point source pollution is a single source of pollution, such as a pipe from a factory dumping untreated waste into a river. The discharge of pollution into navigable waters is unlawful without a permit. However, the EPA has also historically left much of the regulation and enforcement of the CWA to the states and tribal governments.
The CWA and EPA’s exact powers and scope have been argued and codified in several court cases, and now the EPA seeks to further clarify the Clean Water Act.
Proposed New Rules for the Clean Water Act
The EPA found that the 2020 Rule for CWA was a massive departure from previous interpretations and practices, such as adopting a narrower “discharge only” approach instead of an “activity as a whole” approach to regulating pollution and granting permits. Likewise, the 2020 Rule’s requirements for discharge permits were found to disrupt state and tribal certification programs. As such, the EPA wants to return to pre-2020 principles, like the “activity as a whole” approach and greater emphasis on the role of state and tribal governments. As well as this return to pre-2020 principles, the EPA wants to update the certification process to be more efficient and predictable.
However, a recent Supreme Court case may change the scope of the Clean Water Act and the Environmental Protection Agency’s powers.
Sackett v. Environmental Protection Agency
On October 3, 2022, the Supreme Court heard arguments in Sackett v. Environmental Protection Agency. The case involves Michael and Chantell Sackett’s fight to build a house near Priest Lake in Idaho. The EPA denied their application, stating there are protected wetlands on their property, and it is therefore subject to the Clean Water Act. The Supreme Court is debating whether the EPA’s test for declaring what are “waters of the United States” is proper.
Many conservatives have criticized the EPA and the Clean Water Act for overstepping and infringing on the rights of property owners to develop their own land. Environmental groups, however, worry that if the Supreme Court rules with the Sacketts many important streams and wetlands would no longer be protected. The Biden administration has argued that limiting the CWA would prevent them from protecting wetlands that are physically separated from a river or other navigable waters (e.g., dunes) but none-the-less can influence the river’s health.
The Court has not yet decided if it sides the Sacketts, or if the Clean Water Act’s scope will remain the same.
2022 promises to be a big year for the Clean Water Act, 50 years after its creation. Only time will tell how this court case and proposed rules will impact it, and therefore impact regulators, property owners, environmentalists, and the United States’ waterways themselves.
With more than three decades of experience in these types of issues in Oregon, we have a deep understanding of how regulations can intersect with land use issues and development projects. For a consultation with our Portland office, call 503-837-3471 or email us directly.
- Clean Water Act Section 401 Water Quality Certification Improvement, 87 Fed. Reg. 35318 (June 9, 2022) (proposed rule 33 U.S.C. § 1251).
- Environmental Protection Agency. (2022, July 6). History of the Clean Water Act. EPA. Retrieved October 5, 2022, from https://www.epa.gov/laws-regulations/history-clean-water-act
- Environmental Protection Agency. (2022, July 6). Summary of the Clean Water Act. EPA. Retrieved October 5, 2022, from https://www.epa.gov/laws-regulations/summary-clean-water-act
- Marimow, A. E. (2022, October 3). Supreme Court debates narrowing protections in Clean Water Act. The Washington Post.
- Water Pollution and Control, 33 U.S.C. § 1251 (2020).