WATER POLICY

Ripple effects of SCOTUS’ wetland ruling threaten quality of nation’s water

President Biden could solve this dilemma by mandating the EPA coordinate a solution

Photo by Landon Parenteau on Unsplash

By Jesse L. Barnes, Ph.D. & Elizabeth A. Koebele, Ph.D.

In May 2023, the Supreme Court (SCOTUS) ruled in Sackett v. EPA that the Environmental Protection Agency (EPA) cannot regulate pollutant discharges to wetlands that don’t have continuous surface water connections with the “waters of the United States” (WOTUS). The waters that constitute WOTUS are more commonly referred to as surface waters, including lakes and rivers, which are primarily governed under the Clean Water Act (CWA).

However, the consequences of this ruling could impact other US water policies typically seen as unrelated to wetlands, such as the Safe Drinking Water Act (SDWA), consequently creating new burdens on communities as they attempt to comply with existing law. This case — and the institutional dilemma at its heart — highlight the need to better attend to interlinkages between public policies and the potential unintended consequences of policy change.

SCOTUS Wetland Case

Sackett v. EPA focused on the Sackett family’s attempt to build a house on a plot of land overlapping with an ephemeral wetland adjacent to nearby Priest Lake in Idaho (see figure 1). When the family began backfilling their property, the EPA alerted them that the construction activity was illegal under the CWA — a 1972 policy that gives the EPA authority to protect surface waters by setting pollutant discharge standards.

The EPA’s primary concern was that stormwater that naturally floods the wetland each year could wash both naturally occurring contaminants (e.g., soils loosened at the construction site) and anthropogenic contaminants (e.g., leaked petroleum and building supplies) into the nearby ditch that flows into a creek and ultimately into Priest Lake, creating an unpermitted discharge.

In response, the Sackett family sued the EPA, contending that their property didn’t fall under CWA purview due to the ephemeral nature of the wetland. The case ascended to the U.S. Supreme Court, which ruled in favor of the Sacketts, arguing that the wetland does not “continuously flow” to surface waters and is, therefore, not under the jurisdiction of the CWA.

Figure 1: Flow pattern demarcated as red arrows from the Sackett property to the roadside ditch and then to Kalispell Creek that flows into Priest Lake (Figure built by article author Jesse Barnes using ArcGIS, background image sourced from ESRI and wetland data sourced from the US Fish & Wildlife Service).

Although the Sackett property may not individually cause a large enough spike in surface water contamination to impact downstream water users, new restrictions on the EPA’s ability to regulate pollutant discharges adjacent to continuously flowing water under the CWA could lead to systemic increases in surface water pollution. This, in turn, could impact the implementation of a second US water policy, the 1974 SDWA. The SDWA gives the EPA authority to set tap water treatment standards for community water systems (CWSs), or systems that serve a population of 25 people or more year-round, including large utilities and regional water systems.

CWA implementation has historically complemented SDWA implementation by improving surface water quality. However, reductions of federal CWA enforcement — such as those resulting from the Sackett v EPA ruling — could place additional and unexpected burdens on CWSs and unintentionally undermine successful SDWA implementation.

For example, in Idaho, where the Sackett’s property is located, multiple CWSs source from surface waters connected to other wetlands (see figure 2). The cumulative effect of multiple construction zones on ephemeral wetlands could lead to significantly higher rates of contaminants in surface waters throughout the US, thereby challenging SDWA compliance and impacting the health of tap water consumers served by CWSs sourcing from surface waters. This informal and potentially adverse link between the CWA and SDWA via surface waters presents what we call an “institutional dilemma.”

Figure 2: State map of CWSs sourcing from surface water and wetlands in Idaho. CWSs are demarcated by a red point, and the wetlands are colored blue (Figure built by article author Jesse Barnes using ArcGIS, Idaho wetland data sourced from the US Fish & Wildlife Service, and CWS data sourced from SimpleLab)

Water Governance Institutional Dilemma

Collections of public policies function as formal rules that govern a particular facet of human actions and interactions, such as water resources management, commonly referred to as institutions. An institutional dilemma exists when an institution’s policies are fragmented, and thus changing one part of an institution (e.g., limiting CWA enforcement) can adversely affect another, informally connected aspect of the institution (e.g., SDWA compliance).

By design, such a dilemma can place policy actors in a position where they must take unilateral institutional actions to comply with policy changes, such as SCOTUS’ reduction of CWA enforcement, regardless of the unintended consequences these actions could have on other aspects of the institution.

Institutional dilemmas likely exist or emerge because social and natural environments operate as complex, interconnected, and dynamic systems. Despite this complexity, many formal policies take a narrow and myopic approach to governing that fails to account for the interconnectedness of public issues within the system. The fluidity and highly interconnected nature of water resources make their governance particularly vulnerable to institutional dilemmas, especially given the broad scope and narrow approach of federal water policy in the US.

One potential way to resolve institutional dilemmas is through the formal coordination of the fragmented policies that comprise them. For instance, the President could help alleviate the CWA-SDWA institutional dilemma by mandating the EPA coordinate the implementation of the two policies. In the wake of the Sackett v. EPA ruling, formal coordination between the CWA and SDWA could take the following form:

1. EPA identifies which CWSs source from surface waters adjacent to ephemeral wetlands in the US.
2. EPA establishes worst-case scenarios for surface water quality if discharges or construction occur in ephemeral wetlands.
3. EPA determines which CWSs sourcing from surface water would be most vulnerable to spikes in surface water contamination due to worst-case scenarios.
4. EPA provides targeted resources to vulnerable CWSs to ensure they can continue to provide safe drinking water (e.g., enhanced water treatment technology) in a worst-case scenario.

Formal coordination of fragmented policies in other institutions may take different forms and require substantial resources and political maneuvering. However, this approach could offer a solution to institutional dilemmas by emphasizing systems-level thinking in response to increasingly complex policy issues.