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The Supreme Court Hangs the Clean Water Act Out to Dry

May 28, 2023

Sackett Case Sacks Wetlands Protections in the Clean Water Act

Last Thursday, May 25, the Supreme Court severely limited the Environmental Protection Agency’s (EPA) ability under the Clean Water Act to ensure that waters in the country are free of contamination. Five of the six conservative justices said that wetlands, swamps, and bogs, which don’t have a continuous surface connection to a river or lake, are outside of the agency’s authority.

Nicholas A. Tonelli / Creative Commons

According to the EPA, for years humans have drained or filled wetlands for development or farming, causing habitat loss and flooding as well as reducing buffers to erosion. Wetlands are like sponges that absorb water with highly developed root systems that filter pollutants and hold soils in place.

But the ruling means that about half of all wetlands and approximately 60 percent of streams in the country will no longer be protected by the federal law, according to environmentalists. The EPA has been enforcing the Clean Water Act for 51 years, and it had been two decades since the Supreme Court last interpreted what waters of the U.S. the agency could protect.

The case, Sackett v. EPA, came out of Idaho, where a couple wanted to build a home on a parcel about 300 feet from Priest Lake and began backfilling the site with gravel and sand. The EPA said there would be fines if the project went forward without a permit because it was on wetlands.  

The Sacketts sued the EPA, but the Court of Appeals sided with the agency, which said that water from the wetlands got into the lake by a creek and was especially important to maintain the quality of its water, fish, and wildlife. However, the Supreme Court said that the EPA went too far.

Even conservative justice Brett Kavanaugh disagreed with the decision in his own opinion stating that the majority’s decision will leave some adjacent wetlands no longer covered by the Clean Water Act, significantly affecting water quality and flood control in, for example, the Chesapeake Bay or the Mississippi River. Kavanaugh pointed out that the Mississippi River has an extensive levee system to prevent flooding; but now the EPA would not be able to regulate nearby wetlands even though they are important to controlling flooding. He added that even if a wetland is visually distinct from another body of water, the scientific evidence overwhelmingly shows that it still affects downstream waters.

The Washington Post reports that upstream developments, which the EPA might have halted because of pollution or silt, can damage downstream waters and; reduce flood protections, but may now be able to go forward. Pollutants coming from miles away from the river can find their way to it through wetlands, streams, and creeks—but if not connected on the surface—the EPA can’t act.

The agency will now be prevented from protecting almost 120 million acres of wetlands—an area larger than California, according to the environmental organization Earthjustice.

Colorado River “Deal” Is Short on Details—and Not Really a “Deal” Yet

Early last week, three of the seven states that make up the Colorado River Basin—California, Arizona, and Nevada—proposed to conserve an additional three million acre-feet of water by the end of 2026. In exchange, they would get $1.2 billion from the federal government.

Lake Mead as seen from Stewarts Point, Nevada  | Credit: Tony Webster / Creative Commons

While the deal looks like progress on the Bureau of Reclamation’s goal to protect the two large reservoirs on the Colorado River, Lakes Powell, and Mead, it’s only a temporary fix, and according to some, does not go far enough. Also, it has yet to be accepted by the myriad water agencies that would have to sign off. Tom Buschatzke, representing Arizona, said that the deal was not an agreement but only an agreement to submit a proposal to the federal government.

Together, the reservoirs on the river serve 40 million people, businesses, and agriculture, but water levels have fallen because of climate change and drought. The federal government has warned that unless the seven states agree on a plan to cut consumption, then it will step in.

Last year, Camille Touton, Commissioner of the Bureau of Reclamation that manages the reservoirs, said that the states need to stop using as much as two to four million acre-feet from the river, about one-third of its average annual flow. However, the proposal announced by the Lower Basin states falls well short of that. John Fleck, water expert at the University of New Mexico, wrote that there is no breakdown of how the cuts will be accomplished and how much will be borne by California, Arizona, or Nevada.  It’s  “…a pile of stuff shrouded in a tarp that we’re not allowed to peak under,” Fleck wrote.

In light of the proposal, the federal government announced the suspension of its current push to craft its own plan, and will analyze it under its review process.

Montreal Protocol Worked, Showing Humans Can Come Together to Solve a Crisis

Despite what feels like an era of divisiveness, humans can—and have—united to solve environmental problems. Back in 1985, when scientists observed that concentrations of ozone were diminishing over Antarctica—eventually dubbed the ozone hole—countries rallied to sign the Montreal Protocol to reduce ozone-depleting substances (ODSs), commonly used in products such as refrigerators, air conditioners, fire extinguishers, and aerosols. It was not only a remarkable act of global cooperation—every country ratified it—but also successful, as nearly 99 percent of banned substances such as chlorofluorocarbons or CFCs have been phased out and the ozone layer is on track to recover within four decades.

Arctic sea ice | Credit: Patrick Kelley / Creative Commons

And, according to a new study, that treaty is a gift that keeps on giving. A team of researchers led by Columbia University has found the treaty’s implementation has delayed the Arctic’s becoming completely ice free in the summertime by as much as 15 years. An “ice-free” summer means a sea ice extent of less than one million square kilometers, rather than zero sea ice cover, and scientists say it could happen by 2050 if not sooner. That’s because CFCs trap heat in the atmosphere and having fewer of them spared us around 0.5C of global warming. For the Arctic, which is heating up faster than other places on Earth, the treaty prevented nearly 200,000 square miles of sea ice from disappearing forever.

While the Montreal Protocol won’t save us from climate change, the finding does demonstrate that when agreements are taken seriously and enforced—looking at you, Paris Accords—positive results can happen.

The study was published in Proceedings of the National Academy of Sciences.

Seagulls Follow Humans in Snacking Choices

Summer is upon us, and if you’re off to the beach, picnic in hand, inevitably seagulls will appear ready to snatch your sandwiches or snacks. But according to a new study, gulls are more discerning than their dive-bombing behavior might suggest. Researchers from the University of Sussex say the birds decide what to steal based on what we like to eat.

European herring gulls (Larus argentatus) | Credit: Kulac / Creative Commons

They came to this conclusion by placing potato chips in two different colored packages—one green, one blue—on the ground near a group of European herring gulls (Larus argentatus) at Brighton Beach in the UK. They then sat nearby and ate from a package that matched just one of the colors and waited to see what would happen. The researchers say the birds would turn their heads to watch the munching humans, and if the gulls decided to make their move, nearly all—95 percent—chose to peck the same-colored package the scientist was holding.

Furthermore, when the scientists sat without snacking, only a few birds approached the chips. But when the researchers started eating, nearly half of the birds decided to check out the bags.

Many animals learn from each other; however, in this case, the gulls were biased by human choices—something called “stimulus enhancement,” which the researchers say demonstrates the birds’ intelligence. So, don’t try to trick them with some broccoli or healthy snacks—they’re gulls, but they’re not gull-ible.

The study was published in the journal Biology Letters.