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As the Supreme Court rules on ‘waters of the United States,’ it’s worth remembering how water issues have shaped our history.
May 26, 2023
The U.S. Supreme Court Building in Washington, D.C. (Photo by Robert Alexander / Getty Images)

In a long-awaited decision yesterday, the Supreme Court ruled that the Environmental Protection Agency will no longer be able to regulate some bodies of water that it has long overseen, under a new, narrower way of interpreting an ambiguously defined phrase from the 1972 Clean Water Act: “waters of the United States.”

Before getting into the case decided yesterday, let’s step back and look at the big picture.

You don’t have to be a political genius with an advanced degree in environmental science to understand why federal oversight is necessary to fairly settle many issues of water availability and cleanness.

In fact, the importance of cooperation on water issues among federal, state, and local governments was vividly driven home this week by a settlement (of sorts) of the contentious question of how Colorado River water will be shared. California, Arizona, and Nevada, along with local governments, have agreed to conserve 3 million acre-feet of water over the next three years. As part of the deal, the federal government will compensate the states with about $1 billion for doing so.

In the case of the Colorado, decisions had to be made about how much water Las Vegas and Phoenix get, while making sure the almond trees and Roma tomato plants get an allotment, too.

Other examples of cross-jurisdiction water issues abound. In Texas, for instance, there are many rechargeable aquifers and ongoing issues of sorting out how new housing developments get needed water access without hurting existing populations in neighboring cities and counties.

In a case closer to home for me, I live about a mile from the Lake Erie shoreline in Ohio. I understand that folks in Detroit don’t always think about how their discharges affect people living about 100 miles southeast of them—but what Detroit puts in its water affects the water quality where I live. We swim in that water. We drink it.

I could go on and on—the Great Salt Lake drying up, the Mississippi River Delta around New Orleans, Chesapeake Bay hitting dead-zone territory, algae blooms in western Lake Erie, the rise of regional droughts as the second-most-expensive kind of U.S. natural disaster—these are all issues that localities are not capable of sufficiently addressing on their own.

We could trace issues like this back into the shadows of prehistory—back at least to the Tigris and Euphrates. But there’s no need to go that far. Just look at our own country, where jurisdictional issues over who could make improvements to (i.e., build locks on) the Potomac River led to a conference at George Washington’s Mount Vernon home in 1785, which led to a sequel meeting in Annapolis in 1786, which in turn led to the 1787 convention in Philadelphia that gave us our Constitution.

In other words, you can draw a straight line from issues of water jurisdiction and regulation to our system of self-government.

An earlier example from the life of George Washington has yet another connection to today’s headlines. In November 1763, the future first president led a business group (“Adventurers for Draining the Dismal Swamp”) that appeared before the General Assembly of Virginia asking for funding to drain the marsh for farmland and possible coastal seaports.

The Dismal Swamp still exists, in southeast Virginia and northeast North Carolina, albeit with a footprint just 10 percent of the vast two thousand square miles of Washington’s day. And its economic value has changed over time. The marshes used to be seen as more valuable after they got drained with canals built in; nowadays we have a richer understanding of their ecological importance, filtering out pollutants from agricultural runoff—a desperately important function.

Annie Proulx, the Pulitzer Prize-winning author, made just this point in her book Fen, Bog and Swamp last year: “Wetlands are classified by the values of what-use-are-they-to-humans,” she writes in the first chapter. “Ecologists use a different measuring stick; they are interested in the different ways wetlands fit into the natural world’s mesh of existence.”

Last December, the Environmental Protection Agency and the U.S. Army Corps of Engineers tried to redefine “waters of the United States.” The phrase is ambiguously defined in the Clean Water Act, and so how a given administration chooses to interpret it determines where the EPA has jurisdiction over water issues. To no one’s surprise, the bureaucrats’ new definition is confusing and quite long—taking up 141 pages in the Federal Register.

I had to crack out my dictionary to work through parts of the proposed new definition. What the EPA was trying to define out was whether a rivulet or tiny wetland had “relatively permanent” standing (continuously flowing with a connection to larger waterbodies) or had a “significant nexus” connection to larger waterbodies (meaning it could be dry at times, but would be connected after heavy rains). The feds seemed to have found a compromise of sorts, an apparently more moderate position than either of the WOTUS interpretations used by the Obama administration (which critics had said was overly restrictive to private property owners and businesses) or the Trump administration (which environmentalists deemed a giveaway to home builders, farmers, and ranchers).

Even so, U.S District Judge Daniel Hovland in North Dakota issued a temporary preliminary injunction last month to halt enforcement of the new WOTUS rule. His ruling means federal protections for rivers, lakes, streams, wetlands, and other waterways in 24 states were thrown out, pending yesterday’s SCOTUS ruling. The new rule “poses a threat” to the states’ sovereignty and would cause “irreparable harm,” Hovland wrote, and “common sense dictates that it only makes sense to wait” until the Supreme Court ruled.

Which brings us to yesterday’s ruling in Sackett v. EPA. Michael and Chantell Sackett bought a half-acre plot of land beside Idaho’s Priest Lake, a fairly large body of water (about 20 miles long by 5 miles wide) near the Canadian border. They wanted to build a house on that plot, and fill in some wetland area with gravel before building. In 2007, the EPA halted the work after determining that the Sacketts’ lot contained a federally protected wetland that was part of the Priest Lake watershed.

This dispute has been making its way through the courts for a decade, and the Supreme Court heard oral argument last October. Yesterday, all nine justices sided with the Sacketts and ruled against the EPA.

But the Court’s three liberal justices were joined by Brett Kavanaugh in criticizing the new test adopted by the Court’s conservative majority for determining whether bodies of water can be considered “waters of the United States” and therefore can be regulated by the EPA. By narrowing the definition, Kavanaugh wrote, “the Court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States.”

In light of yesterday’s ruling, Judge Hovland will presumably soon throw out the proposed new rule from the EPA and Corps of Engineers. And those agencies will, one assumes, have to return to the drawing board in drafting a new definition for WOTUS.

I do wonder whether a recent court ruling in Ohio might betoken a different way of thinking about water disputes—one that might even see these disputes fix themselves. The western part of Lake Erie, where the Maumee River flows into the lake at Toledo, has had algae bloom problems for many years. Part of the problem is geographical: Lake Erie is the shallowest of the Great Lakes and gets warmer the rest in later summer, and has little water churn in this basin near Toledo. Algae blooms are worse there because the water is naturally warmer and more stagnant than the rest of the Great Lakes.

In August 2014, one million or so of those Toledo metro area residents were not permitted to drink any water from their faucets for three days. Multiple solutions were sought, but there was a problem that persisted that seemed to have little potential of being solved.

The Maumee River starts in Fort Wayne Indiana and connects with Lake Erie in Toledo about 150 miles away. The watershed of the river is in 3 states—Michigan, Indiana, and Ohio—and the agricultural runoff from all this farmland upstream from Toledo was the primary cause of the algae bloom. The Ohio EPA had long been seen as favoring agricultural interests, and any way to get the politically influential ag folks to work to reduce runoff into the Maumee River was seen as extremely difficult given the differing parties involved.

But earlier this month, U.S. District Judge James G. Carr got the quarreling parties in his courtroom—environmental groups, the Ohio EPA, the U.S. EPA, and counties along the river—to sign a consent decree where they themselves would come to an agreement to this six-year old court case. He got them to agree to sit in a room and come up with a solution to reduce the daily ag runoff loads going into the river.

In his order on the consent decree solution, Judge Carr quotes himself from a previous hearing: “Sure, I can reach a decision. I get paid to reach decisions, but it is not going to be the end of it. And for anybody interested in a real meaningful effort to resolve the growing problems in Lake Erie and their consequences, I think the only way that’s going to happen is for the U.S. EPA, the plaintiffs, and the State of Ohio to work cooperatively towards accomplishing a meaningful outcome and resolution. I can make a decision, but it’s just going to kick the can down the road for another two years, at least, at least.”

What is being done here by this federal judge in Ohio is radically different from our current status where seemingly everything winds up in very contentious court action. Judge Carr basically told the principal parties to sit down and negotiate, use the give and take approach to settle things, and then set the table for determining future water-quality solutions.

That approach won’t work for settling every water issue. But in many instances, it might be a helluva lot more effective than what’s been tried so far.

Daniel McGraw

Daniel McGraw is a freelance writer and author in Lakewood, Ohio. Follow him on Twitter @danmcgraw1.