ELI Report
Author
Nick Collins - Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
6

Research Paper Filling the gaps in state programs to protect Waters of the United States in a post-Sackett world

The wake of May’s Supreme Court decision in Sackett v. EPA, combined with a rule change issued by the agency in August, has shifted the legal protections afforded to Waters of the United States, known commonly as WOTUS, under the federal Clean Water Act. These actions place a substantial burden on state and tribal regulators and legislators to protect waters within their jurisdiction.

In May, ELI published a research paper titled Filling the Gaps: Strategies for States/Tribes for Protection of Non-WOTUS Waters. The study identifies which states are reliant on the federal agency’s definition for protection of freshwater wetlands and tributaries from dredge and fill, which states have limited coverage for non-WOTUS waters, and which states have comprehensive permitting programs applicable to their waters that may fall outside of federal coverage under the act.

The report goes in depth into states with fairly comprehensive permitting programs applicable to their waters (i.e., wetlands) including those that fall outside the coverage of the federal CWA. These are California, Connecticut, Florida, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, Washington, and Wisconsin. This section also makes comparisons between states in this category, demonstrating how the coverage of these programs varies.

The study includes a number of states that have adopted specialized laws and regulations, or in some states case-by-case review practices, that are expressly intended to fill identified gaps in federal CWA coverage. These states provide some regulatory protections for identified classes of non-federal waters, including certain of their nontidal wetlands.

Some states provide regulatory authority and funding to specific activities affecting protected waters. The seven states with limited or gap-filling regulatory coverage are: Arizona, Illinois, Indiana, North Carolina, Ohio, West Virginia, and Wyoming, plus the District of Columbia. The report includes a comparative analysis among all of these regulations.

In addition to statewide programs, the report looks at alternative or supplemental approaches that may protect non-WOTUS waters. These approaches include state or local regulations of activities to protect buffer areas adjacent to waters and wetlands; local regulation of wetlands/waters (as authorized by state law or by home rule); regulation of particular activities rather than of specified waters; conservation planning; water quality standards for certain non-WOTUS water; conservation banking with protection for wetlands/waters; voluntary conservation and restoration programs; and hazard mitigation or resilience.

The study also includes an analysis of tribal wetlands programs. The CWA authorizes EPA to treat tribes with reservations as similar to states, allowing these tribes to administer regulatory programs and receive grants under CWA authorities.

Tribes may also develop regulatory programs under tribal law and create non-regulatory programs to protect, manage, and restore wetlands on their lands. More than 40 tribes have submitted independent wetland program plans. Tribal wetland programs, as do state programs, vary widely.

A good deal of investment is needed at the state and local level to ensure that the critical functions provided by wetlands and other waters are not lost.

TSCA conference takes up reducing PFAS in the environment

The Toxic Substances Control Act Annual Conference is hosted by ELI, Bergeson & Campbell, P.C., and the George Washington University Milken Institute School of Public Health. Each year, the conference brings together premiere TSCA experts to reflect on challenges and accomplishments since the implementation of the 2016 Lautenberg Amendments.

This year, Lynn Bergeson and Bob Sussman started off the program with broad reflections on the current state of TSCA implementation. Following that, EPA Assistant Administrator Michal Ilana Freedhoff gave a keynote discussion, announcing the EPA Framework for Addressing New PFAS and New Uses of PFAS.

The first panel discussed various aspects of EPA’s risk evaluation of chemical substances. The panelists covered the agency’s potential use of European Union REACH data, EPA’s use of new approach methodologies, the effectiveness of a “whole chemical approach” to risk determinations, and the incorporation of cumulative risk assessment in TSCA risk evaluation.

The second panel discussed EPA’s authority under the Lautenberg Amendments to manage chemical risks. The discussion included how the agency manages workplace risks, enforcement mechanisms for risk management restrictions, whether EPA’s risk management rulemakings are adequately addressing environmental justice concerns, and potential legal challenges to final risk management rules.

This year’s conference featured five former assistant administrators who oversaw EPA’s toxics office.

The third panel discussed new-chemical review under the 2016 revision of TSCA. Panelists covered transparency, processes to guide new-chemical review, new approaches to assess chemical risks, concerns for workers and fenceline communities, and recent trends with EPA’s review of new-chemical substances.

The final panel discussion covered the unique role of TSCA, as compared to other EPA programs, in addressing the issue of PFAS. Experts discussed the agency’s working definition of PFAS, the effectiveness of TSCA implementation in addressing PFAS, whether PFAS should be regulated on a category or chemical-specific basis, and more.

Speakers included Shari Barash, Lynn Bergeson, Madison Calhoun, Jordan Diamond, Maria Doa, Emily Donovan, Alexandra Dapolito Dunn, Richard E. Engler, David Fisher, Michal Ilana Freedhoff, Eve Garnet, Lynn Goldman, Ben Grumbles, Rashmi Joglekar, Jim Jones, Jonathan Kalmuss-Katz, Matt Klasen, Pamela Miller, Jeffery Morris, W. Caffey Norman, Steve Owens, Steve Risotto, Daniel Rosenberg, Jennifer Sass, Robert Sussman, Brian Symmes, and Meredith Williams.

ELI members can access a recording of the entire TSCA conference and all associated materials as part of their membership on the ELI website.

Nashville signs order on reducing food waste

A new Model Executive Order on Municipal Leadership on Food Waste Reduction developed by the Environmental Law Institute and Natural Resources Defense Council can help localities reduce the amount of food wasted throughout municipal operations, highlight the importance of reducing food waste, and demonstrate food waste reduction measures that businesses and other entities may voluntarily replicate.

The model was developed as part of ELI’s Food Waste Initiative, which aims to help stakeholders meet U.S. food loss and waste goals by implementing public policies and public-private initiatives to prevent food waste, increase surplus food rescue, and expand scrap recycling.

Up to 40 percent of food in the United States is wasted. Local governments are well-positioned to address the problem. Given the large amount of food that some municipalities procure and the many people that they employ, the impact of food waste reduction measures in municipal operations can be substantial.

The model offers a range of municipal measures to reduce food waste that include staff training and hiring, procurement policies, and employee benefits.

Recently, Nashville adopted a resolution in support of two key measures in the model: a food waste reduction goal and adoption of best food waste reduction practices by municipal departments.

Filling the Gaps in State Programs to Protect WOTUS

Where Statutory Language Turns Up Missing, Don’t Invoke Science
Author
Craig M. Pease - Former Law School Professor
Former Law School Professor
Current Issue
Issue
5
Craig M. Pease

We have utterly destroyed the Great Black Swamp, formerly covering much of northwestern Ohio. We have channeled the Los Angeles, Sacramento, Missouri, and Mississippi, so they no longer meander. We have turned wet soils into farmland by draining over 50 million acres. Wetlands destruction is everywhere and ongoing, and it harms not just human communities, but also the fascinating flora and fauna of wetlands—the horned bladderwort, in Cooter’s Bog in Louisiana, is a predatory plant that captures insects with bladders on its roots.

The majority opinion in Sackett vs. EPA from June past will greatly restrict the Clean Water Act jurisdiction over wetlands, exacerbating their already dire circumstances. While I adamantly endorse broad and effective wetlands protection, I simultaneously see excellent reasons why the Supreme Court in Sackett ignored the entreaties of scientific societies, the federal government, and environmental NGOs to craft a legal test grounded in science for Clean Water Act jurisdiction over wetlands.

The Sackett dispute turned on the scope and application of the statutory terms “navigable waters,” “waters of the United States,” and “wetlands adjacent.” The amicus brief filed by 12 science organizations, including the prominent Ecological Society of America, states “the legal and policy decisions at issue in this case must be informed by the best available science.”

So too, the government. While Sackett was pending, EPA promulgated the rule titled “Revised Definition of ‘Waters of the United States.’” In a Sackett brief the government wrote “the proposed rule . . . reflects the agencies’ current assessment of the best available scientific evidence.” In turn, that rule is grounded in two lengthy government-sponsored reviews of wetlands scientific literature, the 2023 Technical Support Document for the Final Rule, and the 2015 Connectivity Report.

Yet the majority opinion in Sackett, and the three minority concurrences, barely mention science. Indeed, the majority opinion states “the CWA does not define the EPA’s jurisdiction based on ecological importance,” and elsewhere it dismisses Justice Kennedy’s significant-nexus test from Rapanos that had been adopted by the agencies, critiquing their decisions as “fact-intensive ‘significant-nexus’ determinations that turned on a lengthy list of hydrological and ecological factors.”

Compare the role of science and technology in the portion of the CWA at dispute in Sackett vs. their role in CWA permitting under the National Pollutant Discharge Elimination System. The statutory provisions at issue in Sackett make no explicit reference to science or technology, much less to “best available science.” The only weak and tenuous statutory connection to science is that the overarching CWA goal—“to restore and maintain the chemical, physical, and biological integrity of the nation’s waters”—somehow allows jurisdiction to be determined by scientific factors.

By contrast, the NPDES permitting scheme is explicitly grounded in science and technology, making statutory references to “best conventional pollutant control technology,” “best practicable control technology,” and “water quality standard.” In NPDES permitting, as in Endangered Species Act listing decisions, and in Clean Air Act regulation, there is an explicit statutory reference to science or technology, a legal standard for science or technology to enter agency decisionmaking, and a process for it to do so.

Sackett is a case about jurisdiction—about drawing lines on a map and deciding which legal and political entities exert control within those boundaries. In that regard, Sackett might profitably be compared to congressional redistricting, something broadly understood to be primarily political, albeit with limited legal review. Science only has a restricted role, for example in the redistricting process, predicting racial composition of proposed alternatives.

CWA jurisdictional determinations are inherently legal and political decisions. There is a limited role for science; by analogy to redistricting, science might predict the consequences of various alternative ways to define CWA jurisdiction. But that is not what EPA and the Army Corps of Engineers have tried to do. Rather, their entire administrative apparatus for making CWA jurisdictional determinations was inextricably interwoven with science.

Science best enters environmental decisionmaking when the line between science versus law, politics, and policy is sharp, and the role of science is limited. Best that science sticks to science. And best that inherently political and legal decisions be explicitly recognized as such, and not be camouflaged under the rubric of science.

Where Statutory Language Turns Up Missing, Don’t Invoke Science.

No Bright Lines When Judging Diverse Waters of United States
Author
David P. Clarke - Writer & Editor
Writer & Editor
Current Issue
Issue
3
David P. Clarke

For developers, farmers, and other interests, the Trump administration’s 2020 rule defining “waters of the United States” subject to federal permitting requirements was just fine. That’s understandable. Under that regulation, 75 percent of waterbodies were deemed outside the scope of the Clean Water Act. But in January, President Biden’s EPA and Army Corps of Engineers replaced the 2020 rule with a new one that has provoked concerted attack.

Numerous industry groups charge that the new regulation exemplifies “federal overreach” on public and private land, joining 26 states that filed a lawsuit in North Dakota, and supporting a Texas and Idaho lawsuit that successfully froze the rule’s March 20 effective date in those two states until after a decision on a pending Supreme Court WOTUS case. In March, the House voted 227-198—with five supporting Democrats—to approve a resolution overturning the new rule. The Senate followed by approving the resolution, but President Biden vetoed the measure.

But overturning the new rule would be problematic, according to Joan Drake, a partner with Modrall Sperling, who before becoming a lawyer spent 14 years as a Corps staffer in both California and New England conducting “jurisdictional determinations” delimiting where WOTUS bodies “were and were not.” Corps staff who review applications for a permit to discharge dredged or fill materials into wetlands or other aquatic sites require regulations clear enough to be meaningfully applied nationwide, she says.

Responding to that need, both the Trump and Obama administrations promulgated “bright line” rules, albeit with widely divergent results, that theoretically would enable faster and easier WOTUS determinations. But U.S. geography and hydrology are too diverse, encompassing the arid West, humid East, and “all ranges in-between,” and in this context one-size-fits-all bright lines “just don’t work,” Drake says.

The new regulation is laudable for eschewing any such “magic-bullet” aimed at simplifying inherently complex field assessments, Drake insists. Instead, the rule adopts two concepts from the pivotal Rapanos v. United States lawsuit challenging federal jurisdiction to regulate isolated wetlands. Justice Antonin Scalia, writing for a plurality, interpreted WOTUS to mean “relatively permanent” waterbodies and wetlands with a continuous surface connection to navigable waters. Justice Anthony Kennedy, in his concurring opinion, interpreted WOTUS to include wetlands with a “significant nexus” to navigable waters.

The 2023 rule “embraces” both interpretations and gives staff various criteria to consider in making the most difficult determinations. Drake gives as a for instance whether an upstream tributary could have a significant nexus creating “material” impacts on the “chemical, physical, or biological integrity” of downstream navigable waters, a CWA touchstone. Criteria include the tributary’s “distance” upstream, a site’s “hydrologic factors,” and other conditions, not all quantifiable.

In fact, as Drake notes, the information agency staff collect must be weighed and balanced to make an informed decision, especially in the arid Southwest. Although no bright lines exist to simplify those decisions, the judgment calls, obviously, cannot be “arbitrary and capricious.” Rather, staff must support their decisions using extensive case-by-case data collected using the rule’s criteria.

Commendably, says Drake, the new rule returns to and improves upon the 1986 rule that Corps staff had been using for decades, employing science and policy to “fill the gap” created when Congress chose to leave WOTUS undefined in the CWA and instead authorized the Corps and EPA to do so. While no regulation is perfect, the 1986 rule promoted development under certain circumstances while also advancing the CWA’s goal of protecting WOTUS.

But critics have strongly voiced their concerns about the new rule. During a February House subcommittee hearing, speaking for the 140,000-member National Association of Homebuilders, developer Alicia Huey argued that the rule will increase permit requirements and delays and spur more litigation without improving water quality. Much of the rule covers “water features” that states already regulate, she said.

By embracing both the “relatively permanent” and “significant nexus” approaches, the rule gives agencies “two bites at the apple,” and it leaves key terms undefined, such as “significantly affect” and “tributary,” giving agencies “unfettered discretion” to interpret the terms, Huey said. In contrast, the Trump WOTUS rule clearly defined “adjacent wetlands,” making the significant nexus test “irrelevant,” among other provisions that gave homebuilders the “clarity and certainty” they want.

No Bright Lines When Judging Diverse Waters of United States.

Innovating Within Existing Law Today
Author
Traci Iott - State of Connecticut Department of Energy and Environmental Protection
State of Connecticut Department of Energy and Environmental Protection
Current Issue
Issue
5
Parent Article

To modernize the Clean Water Act, we need to reengage with the public and reevaluate how we implement existing law. Only then should we pursue focused legislative changes.

When the CWA was drafted, there was a robust national conversation about our impact on the environment, reflected in popular culture through songs like “Big Yellow Taxi” and “Mercy Mercy Me,” and children’s books like The Lorax. We listened to Woodsy Owl’s pollution prevention message and celebrated the first Earth Day. Public sentiment led to the drafting of the CWA and lent support for Congress to issue a bipartisan override of President Nixon’s veto to pass the Act.

The public still values the environment today, as seen by increased crowds at national and local parks, but national-level engagement is more limited. Present-day discussions are more effective on the local level, particularly for environmental justice. By working with local communities, we can identify issues and foster collaboration to support environmental protection, address local concerns, and fulfill CWA requirements. In Connecticut, we have seen progress made in identifying state and local environmental concerns through broad public engagement using the state’s Integrated Water Resource Management efforts, which are based on these principles.

Besides improving engagement, we need to review the CWA and its associated regulations to identify opportunities to improve implementation. Periodic introspection—focused on how practices are implemented to achieve goals—is needed for any long-term effort. This idea is embodied by the principle of kaizen, a Japanese term for “improvement” used by many organizations to seek changes for the better. The challenge is identifying new approaches to implement the Act while staying within existing authorizations and avoiding the issues raised in West Virginia v. EPA.

In Kansas, the Water Quality Standards Program developed an innovative approach to use variance procedures to provide additional opportunities to address water quality challenges. The state worked with smaller communities through a multi-discharge variance for ammonia from wastewater lagoons, providing a framework for these communities to maintain the highest possible environmental quality. The process was supported by facility optimization and periodic evaluation of ways to improve over time. This effort recognized the challenges experienced by small communities and worked within the existing framework of the CWA to provide meaningful relief, while still working toward achieving the water quality goals of Kansas and the CWA.

Nationally, the CWA Section 303(d) Program sought to improve efficacy of water-quality planning through a Program Vision that focused on state and local water priorities, providing flexibility on planning approaches and increased engagement to improve plan implementation. 303(d) programs have implemented this new approach and are now working to address environmental equity and climate change, and achieve better collaboration with tribes and territories— all within existing law.

Examples from Connecticut, Kansas, and the 303(d) Program Vision show that innovating within existing laws can produce positive environmental outcomes.

The best path for addressing environmental inequities within current regulations is to equally implement existing environmental laws, including the CWA, across all communities and places. The CWA 303(d) planning program provides a mechanism for selecting watersheds for water quality-based plans called Total Maximum Daily Load analyses (TMDLs). These plans link standards and monitoring with implementation through permitting and nonpoint source management. The TMDL planning process allows watersheds of local concern to be prioritized for any reason, including equity, ecology, and economy. Data is gathered and actions are implemented to address water quality in these communities when these areas are prioritized for plan development. Combining CWA-based planning and linked implementation with a local focus, innovative approaches, technological advances, and updated information systems can help address local environmental concerns.

Although changes to the CWA are also needed, the current legislative situation is not conducive to changing major laws. In time, especially with public support, change may be possible. Modifications that would improve the CWA include requirements to better address water-quality impacts from stormwater and nonpoint-source pollution, including agriculture; a modern definition of toxic chemicals; an update to technology requirements; and management of groundwater as an integral component of water resources. Until we can consider change at the national level, adjustments at the state and local levels can address some of these issues and improve the environment and economy for communities.

The CWA has weathered the test of time. Its objectives for restoration of the chemical, physical, and biological integrity of our nation’s waters, and its core programmatic components, remain relevant as we seek to address environmental equity, climate change, local concerns, and our economy. Focusing on engaging with the public, improving implementation of existing law, and, in time, enacting focused legislative updates will keep the CWA relevant today and into the future.

Traci Iott is supervising environmental analyst in the Water Quality Program at the State of Connecticut Department of Energy and Environmental Protection. Opinions expressed are her own.

Championing Clean Water Federalism
Author
Ben Grumbles - Environmental Council of the States
Environmental Council of the States
Current Issue
Issue
5
Parent Article

As the nation celebrates the 50th anniversary of the Clean Water Act, a law rooted in the tenets of cooperative federalism, the 50 states, District of Columbia, and territories are leaning forward to strengthen partnerships, and modernize the delivery of environmental protection to meet ongoing and emerging challenges.

This partnership must continue to uphold principles such as science-based national standards and neighborhood solutions with state, tribal, regional, and private-sector leadership. As expectations for equity, climate resilience, and public transparency grow, there is new urgency for federal funding and technical assistance, as well as accountability and enforcement at all levels.

States stand on the front lines of implementing the nation’s environmental laws, administering more than 90 percent of delegable programs. CWA permitting, water quality standards, infrastructure planning, financing, and prioritization all depend on states. In turn, the states know their success depends on federal and other partnerships. In the age of information, three areas for improvement present themselves.

The first is data management, information exchange, and new technologies for monitoring and compliance assurance. The CWA’s noble goals for “fishable and swimmable” bodies and maintaining the “chemical, physical, and biological integrity” of the nation’s waters put a premium on developing sharper and smarter science-based tools and methods to understand pollutants and track the status of waterways. Nowhere is this more relevant than with today’s threat of PFAS chemicals, which threaten people and ecosystems in quantities as miniscule as parts-per-trillion and quadrillion. Modernization of EPA’s Integrated Compliance Information System and Safe Drinking Water Information System should be accelerated in close partnership with states and tribes. Drones and other unmanned aerial vehicles are increasingly essential for states to prevent and respond to environmental and public safety hazards, such as floods, spills, dam failures, and other infrastructure challenges from extreme weather and sea-level rise.

A silver-lining lesson from Covid lockdowns is that off-site, video-enhanced compliance monitoring can help supplement—but not replace—on-site inspections. Bio-monitoring for viruses in sewage to prevent outbreaks in congregate housing shows great promise for environmental protection. Another growing need is environmental justice screening and mapping tools to identify disproportionate impacts based on watershed stressors and health risks in overburdened and underserved communities lacking access to clean and affordable water.

Infrastructure and core program funding also merit attention. States and communities have historic opportunities with the new bipartisan infrastructure law’s funding for CWA and Safe Drinking Water Act state revolving fund and grants programs. Congress and EPA must provide administrative flexibility to the states on cross-cutting requirements, avoid undermining the state revolving fund programs, and continue to embrace climate resilience, green infrastructure, and the energy-water nexus that helps reduce energy consumption and greenhouse gas emissions in the water sector.

Categorical grants for state administration of CWA programs are as essential as ever and should continue to rise. Now is also the time for Congress to revisit the old allotment formula for state nonpoint source program grants to address a growing need to prevent runoff, one of water’s greatest remaining challenges. And a way to make real progress on the CWA’s “no net loss of wetlands” goal is for EPA to significantly boost state wetland program grants to support their capacity to protect wetlands and other waters that may not receive the same level of CWA regulation, given recent and upcoming court decisions citing the major questions doctrine.

Finally, policymakers should enhance innovation and collaboration.EPA, other federal agencies, and states can accelerate results with watershed-based permitting, pay-for-performance procurement, and private-sector conservation finance strategies. With proper safeguards in place to ensure the polluter pays and double-counting is avoided, why not make it easier for corporations and communities to advance their environmental, social, and governance goals by investing in green banks, blue infrastructure carbon sequestration, and other supplemental environmental projects? The water sector should continue to advance integrated “one water” strategies, such as the national Water Reuse Action Plan adopted by EPA and other federal agencies in 2020 and recognized in the bipartisan infrastructure law, with innovative partnerships and treatment technologies for this precious resource. Water program managers must work together, in close coordination with state and local leaders, to fight waste, recognizing every drop counts in the face of drought, wildfire, and other threats to water security.

As federal courts, agencies, and citizens turn increasingly to the states for environmental protection, it is clear that improved information, infrastructure, and innovation under the CWA programs will help deliver the promise of cleaner, healthier, and more resilient waters for the next 50 years and beyond.

Ben Grumbles is executive director of the Environmental Council of the States, the national nonprofit, nonpartisan association of state and territorial environmental agency leaders. https://www.ecos.org/.