Earlier this year, the U.S. Supreme Court stripped federal oversight from millions of acres of wetlands long protected under the Clean Water Act. Now, erecting safeguards to ensure those waters are not polluted, drained or filled in by developers falls to the states.
They’re finding that it’s not easy.
"States and tribes already didn’t have enough funding to support the programs they have, and now they are being put in a position where they need to step up," said Marla Stelk, executive director of the National Association of Wetland Managers, a nonprofit group that represents state and tribal regulators.
Wetlands play a crucial role in filtering pollution and nutrient runoff. They also absorb stormwater, help to recharge aquifers and provide essential habitat for many species. When wetland areas are lost, water managers say, communities may suffer from flooding, become more vulnerable to droughts or require expensive treatment plants to make water safe to drink.
In some states, the loss of federal rules means that many waters are largely unregulated. Some lawmakers, mostly in Democratic-led states, are looking to craft rules to replace the lost Clean Water Act protections, but they expect a yearslong process just to get new regulations on the books.
Other states have had strong rules in place even without the federal coverage. But now they can no longer rely on federal partners such as the U.S. Environmental Protection Agency to help enforce those standards. Regulators in those states are asking lawmakers for millions of dollars to hire more staff to process permits and monitor water quality.
Other states have had strong rules in place even without the federal coverage.
Meanwhile, some conservative states view the rollback as an opportunity for developers and industry. Soon after the court decision, North Carolina passed a law eliminating all state protections that exceeded the federal standard. Environmental advocates say other business-friendly states are unlikely to enact their own protections, and fear that some will follow North Carolina’s lead by cutting existing rules.
"It ought to help with regard to costs and predictability," said Ray Starling, president of the NC Chamber Legal Institute, the legal strategy arm of the business advocacy group, in a June interview with Stateline. "The Supreme Court knew that this would end up yielding quite a bit more jurisdiction to the states. We would argue that’s actually good."
State leaders say they remain unclear on exactly which waters have lost federal oversight following the Supreme Court decision and a subsequent EPA rule based on it. Officials expect plenty of litigation as they attempt to make sense of murky legal definitions from the feds. Some fear that developers may take advantage of the confusion, using states’ uncertainty as implicit permission to bulldoze wetlands.
"Every state’s risk has increased," said Julian Gonzalez, senior legislative counsel for policy and legislation at Earthjustice, an environmental law group. "The whole point of the Clean Water Act was to ensure that there’s not a patchwork of regulations. Even when EPA had full jurisdiction, there were tons of enforcement issues all across the country. This is only going to exacerbate them."
Staffing shortfalls
In May, the Supreme Court ruled that the Clean Water Act does not cover wetlands that lack a continuous surface connection to a larger body of water, which excludes many waters that connect underground. The court also narrowed the law to exclude from protection "ephemeral" streams that flow only seasonally.
Of the nation’s 118 million acres of wetlands, more than half could lose federal protection under the new definition, Earthjustice estimated. The EPA in August issued a new rule revising its regulation known as the "waters of the United States" rule to meet the court’s limitations.
In California, regulators say they’ll also need more funding and staff to enforce state wetlands laws.
"We still don’t know how [courts] are fully going to interpret what constitutes a surface connection, but we’re still assuming that at least 50 percent of [Washington’s] wetlands are no longer jurisdictional [under the Clean Water Act]," said Lauren Driscoll, manager of the wetlands program with the Washington State Department of Ecology.
With the feds bowing out, Driscoll’s agency may have to process an additional 50 to 100 permits a year, up from the 12 or so it currently handles. The agency is currently enforcing state wetland standards using a customized administrative order for each permit. Regulators are asking state lawmakers to enact a dedicated permit program that would create a standardized application process.
The agency also is seeking 10 more staffers to process permits, and three more temporary workers to help develop the new program. Once established, the permit program will cost about $2.2 million per year to administer, Driscoll said.
In California, regulators say they’ll also need more funding and staff to enforce state wetlands laws. For waters that are losing federal protection, states such as California will lose access to environmental analyses, expertise and staff capacity from federal partners such as the U.S. Army Corps of Engineers.
"We are anticipating no longer having support from the [U.S.] Army Corps of Engineers for things we’ve relied on them to do on the technical side" in waters
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